Opinion
June 27, 1967
Order entered January 5, 1967 denying motion for protective order vacating plaintiffs' notices to take the deposition of defendant Sadie Bearman, unanimously reversed, on the law and the facts, with $30 costs and disbursements to defendants-appellants, the motion granted and the notices vacated. Children of defendant Herman Bearman by his first marriage brought this action to remove him as trustee under two trust agreements, one executed before and the other after his second marriage. As his second wife, Sadie Bearman, was thought to have a contingent interest in one or both of the trusts, she was joined as a party defendant, but did not appear or answer. While we do not regard the default as per se prohibiting her examination, especially in view of "the policy of this department gradually to extend the effective arc of examinations before trial" ( Schneider v. Doyle, 6 A.D.2d 122, 123; compare Henshel v. Held, 17 A.D.2d 806, with Kozuch v. Bachmann, 244 App. Div. 250), nevertheless the present papers fail to show that her testimony is material and necessary in the prosecution of the action.
Concur — Botein, P.J., Stevens, Tilzer, McNally and McGivern, JJ.