Dean v. Hotel St. Moritz, Inc.

Order entered August 23, 1966, providing for pretrial depositions of the parties, unanimously modified, on the law and on the facts, to the extent of providing that defendants be examined first, that at said examination the defendants are to produce the documents specified in the notice of examination, that the examination of plaintiffs be held, at defendants’ option in New York no less than 20 days before the trial or in California by written interrogatories or open commission, and if by open commission that the parties respectively pay their expenses to be taxed as costs by the prevailing parties, and, as so modified, affirmed, without costs or disbursements. Priority of examination is not contested by defendants. Plaintiffs initially served their notice of examination and are therefore entitled to priority. Absent special circumstances the party to be examined may not be burdened with the expense of the party seeking it, (See Piel v. Lilly & Co., 19 A D 2d 810; Fitzgerald v. Fitzgerald, 262 App. Div. 708.) Settle order on notice. Concur — Botein, P. J., Breitel, McNally, Steuer and Witmer, JJ.