40 F. Supp. 776 | S.D.N.Y. | 1941
Motion to vacate notice of examination granted as to Brawley. It appears that plaintiff unsuccessfully attempted to examine this person as a defendant in a companion litigation in the New York Supreme Court. Upon this account, I think plaintiff should not be permitted to circumvent that ruling by means of the simple expedient of instituting a suit in this court. Upon conclusion of the ’State court action, plaintiff may re-serve Brawley with a notice of examination. In the event this case proceeds to trial in advance of the State court action, plaintiff may move this court for an order authorizing an examination of Brawley upon whatever terms it claims are proper. Compare Bachrach v. General Investment Corporation, D.C., 31 F.Supp. 84; Finkelstein v. Boylan, D.C., 33 F.Supp. 657.
Motion is denied as to Miller. The mere fact that Miller is a detective employed by the City of New York, in its Police Department, does not exempt him from examination in this court as a witness in a suit not involving the City of New York. It is not controverted that in a pending action in the State court, and which deals with substantially the same parties and issues, plaintiff was permitted to examine as witnesses certain police detectives employed by the City of New York.