Opinion
Action by Mollie Goodman against Clara Lane and another to rescind certain agreements, wherein plaintiff sought to take deposition of defendant corporation by its president. The defendant corporation moved to modify notice to take deposition to provide for examination of such officer having knowledge of facts as may be present in New York or that deposition of president be taken in Los Angeles. The District Court, Weinfeld, J., held that as the testimony sought was that of the corporation, a New York corporation, proper place for examination was in New York City, where its principal office and place of business is located.
Motion denied.
Satterlee, Warfield & Stephens, New York City, F. W. H. Adams, Philip C. Smith, New York City, of counsel, for plaintiff.
Allin, Riggs & Shaughnessy, New York City, for defendant Friendship Center.
WEINFELD, District Judge.
Plaintiff has served notice to take the deposition of defendant, Friendship Center, Inc., by its President, Clara Lane (named as a defendant although not served with process). Defendant moves to modify the notice to provide for examination ‘ by such officer having knowledge of the facts as may be present in the State of New York,’ or, that the deposition of the defendant Clara Lane be taken in Los Angeles, upon the condition that plaintiff pay the expenses and counsel fees of the defendant.
The choice of the officer or agent of a party to be examined rests with the party desiring to take the testimony and not with the one whose testimony is sought. This is particularly appropriate in the instant case since the officer signed and negotiated the agreements sought to be rescinded in this action.
The moving papers merely indicate that the defendant's president is temporarily out of New York, apparently attending to business of the defendant. Since the testimony sought is that of the corporation, a New York corporation, the proper place for the examination is in New York City, where its principal office and place of business is located. Cohen v. Pennsylvania R. Co., D.C., 30 F.Supp. 419.
The motion is denied. However, the order to be entered may provide, at the option of the defendant, upon giving notice to plaintiff within five days after the entry of the order, that if its president decides not to come to New York City for examination, the deposition may be taken in Los Angeles upon condition that the defendant shall pay the expenses and counsel fees of the plaintiff, to be determined by the Court. See Worth v. Trans World Films, Inc., D.C., 11 F.R.D. 197; Machinoimport v. Clark Equipment Co., D.C., 11 F.R.D. 55.
Settle order on notice.