280 A.D. 431 | N.Y. App. Div. | 1952
Bach side in this lawsuit served a notice of examination before trial to take the deposition of the other side pursuant to section 288 of the Civil Practice Act. Plaintiffs’ notice was served before the action was at issue. Defendant’s notice was served with the answer. We would not be inclined to disturb the disposition made by Special Term concerning the topics of either examination, and would affirm, except for the
The examination of plaintiffs by defendant is therefore the only one which is at present pending, and defendant’s examination of plaintiffs will of necessity proceed first.
Although where other considerations are evenly balanced, the party first demanding the examination may well proceed first (cf. Bough v. Lee, 28 F. Supp. 673; Grauer v. Schenley Products Co., 26 F. Supp. 768; Producers Releasing Corp. De Cuba v. PRC Pictures, 8 F.R.D. 254; Modigliani Glass Fibers v. Glasfloss Mfg. Co., 7 F.R.D. 647; Isbrandsten v. Moller, 7 F.R.D. 188; Mutual Finance Corp. v. Sobol, 7 F.R.D. 111 under rule 26 of the Federal Rules of Civil Procedure), it is not possible to lay down an invariable rule.
On plaintiffs ’ appeal, the order should be affirmed; on defendant’s appeal the order should be reversed so as to vacate the notice of examination before trial served by plaintiffs, upon the ground that it was prematurely served before joinder of issue. As so modified the order should be affirmed, with $20 costs and disbursements to defendant.
Callahan, J. P., Van Voorhis, Heeeernan and Bergan, JJ., concur.
On plaintiffs’ appeal the order is unanimously affirmed; on defendant’s appeal the order is unanimously reversed so as to vacate the notice of examination before trial served by plaintiffs, upon" the ground that it was prematurely served before joinder of issue. As so modified the order is affirmed, with $20 costs and disbursements to the defendant. Settle order on notice.
