Malagoli v. Bernstein

In an action to recover damages for personal injuries and for medical expenses and loss of services, the appeal is from an order vacating a notice served by the appellants to examine before trial Eileen Connolly as a witness. Order reversed, with $10 costs and disbursements to appellants, and motion denied, without costs. The examination shall proceed on five days’ notice. The witness sought to be examined is the wife of one of the respondents and is likely to be an unfriendly, if not hostile, witness for the appellants. Inasmuch as the respondent Connolly himself has no recollection of the circumstances surrounding the accident, and his wife is apparently able to supply the information sought, special circumstances within the meaning of section 288 of the Civil Practice Act have been made manifest and entitle appellants to take the deposition. (Zirn v. Bradley, 257 App. Div. 832; Heidell v. Murray Co., 255 App. Div. 792; Angell v. Booth, 169 Misc. 735; Price v. Taylor, 140 N. Y. S. 2d 302.) Under the circumstances disclosed, the granting of the motion was an improvident exercise of discretion. Nolan, P. J., Wenzel, Beldock, Murphy and Kleinfeld, JJ., concur.