Opinion
February 15, 1968
Order, entered September 25, 1967, unanimously modified, on the law and the facts, and in the exercise of discretion, to provide that the parties shall pay their respective expenses incurred in the plaintiff's taking of the deposition of the defendant Raybert Productions, Inc., in California, and that a party ultimately succeeding in the action, if entitled to taxable costs, may tax and recover the expense incurred as a taxable disbursement; and the order is otherwise affirmed, without costs and disbursements. Inasmuch as the notice of deposition requires the production, for use on the examination, of considerable correspondence, records and other papers located at the defendant corporation's home office in California and in the special circumstances of this case, it was proper to direct that the examination be held in such State, either by written interrogatories or by open commission at plaintiff's election. However, it was improper to direct that the plaintiff pay the entire expense of the taking of the deposition. (See Walborsky v. Wolf, 28 A.D.2d 1120; Pakter v. Lilly Co., 19 A.D.2d 810; Jernberg v. Virtis Co., 17 A.D.2d 892.)
Concur — Botein, P.J., Stevens, Eager, Tilzer and Rabin, JJ.