Kaplan v. Sacks

In an action by attorneys to recover the reasonable value of services rendered as necessaries to Alvia Sacks, the wife of respondent Melvin Sacks, in the maintenance of an action for a separation, the appeals are from an order granting the motion of respondent Melvin Sacks to vacate a notice to examine his wife before trial, and from a separate order granting his wife’s motion to vacate such notice and a subpoena calling for her personal appearance at such examination. Orders reversed, with $10 costs and disbursements, and the respective motions denied. The examination is to proceed on 10 days’ notice. In our opinion, there was a sufficient showing that the wife will probably be an unfriendly, if not hostile, witness, adequate to support appellants’ claim that the resultant situation constituted “special circumstances ” (Civ. Prac. Act, § 288) justifying her examination before trial (cf. Malagoli v. Bernstein, 1 A D 2d 1042; Pease & Elliman v. Kress & Co., 4 A D 2d 829). Any claim of privilege now asserted may be protected by proper objection upon the examination or on trial (Matter of Village of Lawrence [Hicks Development Corp.], 285 App. Div. 823). Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.