Zilken v. Leader , 23 A.D.2d 644 ( 1965 )

Order, entered on December 4, 1964, unanimously modified, on the law and on the facts and in the exercise of discretion, to the extent hereinafter indicated, and, as so modified, affirmed, with $30 costs and disbursements to plaintiff. In this action by a resident of West Germany to recover fees for services allegedly rendered in that country as a notary public and counselor at law, Special Term has granted plaintiff’s motion pursuant to CPLR 3108 for an order to take his own deposition before trial upon written questions, and has denied defendants’ cross motion for an oral examination of plaintiff in New York County, without prejudice to a renewal of the cross motion “ if defendants are not satisfied with the facts disclosed by the Written questions.” In our opinion a sufficient showing has been made to justify this disposition. As the possibility always exists, however, that plaintiff may come to this country before the trial, whether to participate therein or for other reasons, the order should be modified by adding a direction that in such case he must promptly notify defendants of his arrival and make himself available for oral examination by them in New York County within a reasonable time thereafter, and in any event not later than five days before the date set for the trial (Winds v. Hydropress, Inc., 279 App. Div. 1005). Settle order on notice. Concur — Botein, P. J., Breitel, McNally, Stevens and Steuer, JJ.