Lynch v. County of Erie , 2 A.D.2d 651 ( 1956 )

Order reversed on the law and facts, without costs of this appeal to either party, and motion granted, without costs. Memorandum: We conclude that the record presents special circumstances entitling the defendant to examine the witness before trial. All concur, except Kimball and Bastow, JJ., who dissent and vote for affirmance in the following memorandum: In our opinion this record discloses no special circumstances within the meaning of section 288 of the Civil Practice Act which justify the granting of an examination of this witness before trial. (Appeal from an order of Erie Special Term denying defendant’s motion for an order directing the examination of Daniel J. Lynch as a witness before trial.) Present — MeCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.