Opinion
December 22, 1970
Order, Supreme Court, New York County, entered September 9, 1970, unanimously modified on the law, the facts and in the exercise of discretion, to deny plaintiff's motion for deposition priority and is further modified to appoint the Hon. Samuel C. Coleman as Referee to conduct and supervise the taking of the depositions to the parties hereto, the fees and expenses of the reference to be paid in equal portions by the plaintiff and defendant, and such fees and expenses to be a taxable disbursement to the prevailing party in the action, and as so modified, the order is affirmed, without costs and without disbursements to either party. We agree with the conclusion of Special Term that the complaint sufficiently pleads valid causes of action. With respect to plaintiff's motion seeking priority of examination there is no showing of special circumstances which warrants disregard of the normal priority accorded to a defendant (CPLR 3106, subd. [a]; Fund of Funds v. Waddell Reed, 26 A.D.2d 809; Van Valkenburgh, Nooger Neville v. John F. Rider Publisher, Inc., 24 A.D.2d 437). However, the nature and circumstances of this action are such that the taking of both parties' depositions should be conducted and supervised by a Referee. While we are not called upon to decide the issue at this time, we note that it may well be that the agreement alleged in the fourth cause of action that "defendant would from his own funds pay all taxes" contravenes section 385 of the New York State Tax Law insofar as it includes State taxes. (See Seabrook v. Seabrook, 3 A.D.2d 993; Metcalf v. Metcalf, 274 App. Div. 744; Mahana v. Mahana, 272 App. Div. 1013; Borax v. Borax, 69 N.Y.S.2d 516.) Settle order on notice.
Concur — Stevens, P.J., Eager, Nunez, McNally and Tilzer, JJ.