Lichtenstadter v. Asia Institute ( 1956 )

Matthew M. Levy, J.

Plaintiff served notice to examine defendant as an adverse party before trial by one Pope. Defendant moves to vacate the notice on the ground that Pope is not an officer, director, agent or employee of defendant.

The papers are voluminous on the issue of whether Pope has been and still is an agent of the defendant corporation. As I view the problem it is not now necessary to resolve that issue. A corporation to be examined as an adverse party may produce those representatives having knowledge of the facts under inquiry (New York Tel. Co. v. City of New York, 248 App. Div. 474). The choice of the persons who are to appear in behalf of the corporation does not rest, at least in the first instance, with the examining party (United States Overseas Airlines v. Cox, 283 App. Div. 31).

The motion is granted to the extent of modifying the notice to examine by substituting for Pope such officer, director, agent or employee of defendant having knowledge of the facts (cf. Deutsch v. City of New York, 200 Misc. 864). The examination will be held at Special Term, Part II, on January 10, 1957, at 10:30 a.m., at which time books and records will be produced in pursuance of section 296 of the Civil Practice Act.

This determination is without prejudice to plaintiff’s seeking to procure (1) Pope’s deposition as a witness and (2) an examination of defendant before trial through “ one or more of its officers, directors, agents or employees ” (Civ. Prac. Act, § 289) having knowledge of the facts on the issue of Pope’s agency or authority in respect of the transaction in suit.