Opinion
October 22, 1964
Order, entered August 17, 1964, denying appellant's motion to vacate a notice to take his deposition as a witness and to quash a subpoena unanimously reversed, on the law and the facts and in the exercise of discretion and the motion granted, without costs. In the action by a wife for separation, the husband pleaded the alleged adultery of plaintiff as a defense and counterclaimed for a separation on the ground of adultery and cruelty. Defendant served a notice to take the deposition of the appellant, named as the corespondent, as a witness. We have held that in matrimonial actions examinations before trial will not be permitted except upon a showing of special circumstances. ( Mook v. Mook, 13 A.D.2d 465; see, also, Nomako v. Ashton, 20 A.D.2d 331.) In the instant case there was no such showing of special circumstances as to warrant a deviation from the general rule. Appellant resides in New York City and is employed here. The case presents the usual situation involved in a charge of adultery where the corespondent is named. The policy underlying restriction of examinations before trial in matrimonial actions is particularly applicable in a case such as this where the examination can be misused for purposes of harrassment and embarrassment. (See Simons v. Simons, 182 Misc. 860.) Under the circumstances, it was an improvident exercise of discretion to deny the motion to vacate the notice of examination and subpoena.
Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.