Hupola v. Kogel , 248 A.D. 589 ( 1936 )

Order granting plaintiff’s motion for examination before trial of defendant Matthews and providing that the deposition so taken may be used on the trial of the action as the deposition of a witness against other defendants reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. There is pending an order for the examination of this defendant and the plaintiff is required to pursue her remedy under that order in amended or resettled form. Plaintiff’s proof of her apprehension that she may not be able to subpoena the defendant as a witness at the trial does not constitute special circumstances in this case within the contemplation of section 288 of the Civil Practice Act. Lazansky, P. J., Young, Johnston and Adel, JJ., concur; Davis, J., dissents and votes to affirm.