Fincke v. Roberts

Order, entered on June 19, 1962, insofar as it denies plaintiffs’ cross motion to examine an attorney before trial as a witness, unanimously reversed, on the law and on the facts, with $20 costs and disbursements to appellants, and the motion granted, with $10 costs. In this action — by the widow and son of a decedent to set aside the designation by the decedent of defendant Roberts as a beneficiary of about $22,000 in benefits of the decedent in the New York City Employees’ Retirement System — it is averred that the attorney, whose examination is sought, prepared the documents designating the beneficiary, participated in their execution and acted as notary. The papers are claimed to have been executed by the decedent (about a month before he died) in a hospital after the decedent had undergone surgery for cancer and was under heavy sedation. Moreover, it appears that the attorney, whom the plaintiffs seek to examine, is an office associate of the attorney for defendant Roberts. Hence, there is indication that the proposed witness will be a reluctant, if not a hostile, witness. The foregoing facts sufficiently demonstrate the existence of special circumstances to warrant the examination of the attorney as a witness. Settle order on notice. Concur — Breitel, J. P., Rabin, Valente, Stevens and Steuer, JJ.