47 Misc. 2d 669 | N.Y. App. Term. | 1965
Order unanimously modified by permitting the examination of defendant Potter as a party and a witness without prejudice to an application to the trial court to use the deposition for all purposes pursuant to CPLR 3117 (subd. [a], par. 3). As so modified, order affirmed, without costs.
As to her codefendant, defendant Potter is a witness (Nixon v. Beacon Transp. Corp., 239 App. Div. 830, 831; Napier v. Bossard, 102 F. 2d 467, 468). Plaintiffs would be entitled to an examination of said party as a witness “where the court on motion determines that there are adequate special circumstances ” (CPLR 3101, subd. [a], par. 4). Since plaintiffs
Concur — DiGiovanna, Gulotta and Brenner, JJ.
Order modified, etc.