Opinion
April 4, 1961
Order, entered on December 15, 1960, granting the motion of defendant Holzer to examine plaintiffs and an impleaded defendant as adverse parties before trial, unanimously affirmed, with $10 costs and disbursements to the respondent. Although the order, which in effect gives defendant Holzer priority in examining plaintiffs before trial, was predicated in part upon the alleged failure of plaintiffs to serve a proper bill of particulars, we do not find any improvident exercise of discretion in granting such priority even though we are reversing the order directing the service of a further bill of particulars and precluding the plaintiffs. Rule XI of the New York County Supreme Court Rules — which deals with priority of examination of parties before trial — is a guide to the disposition of such motions and is expressly made subject to the exercise of discretion by the Special Term Justice when good cause is shown to depart therefrom. Taking into consideration the amendments to complaints and other procrastinating activities of plaintiffs, as well as all circumstances, good cause was shown to depart from the guides otherwise provided for in rule XI. Settle order on notice fixing date for examination to proceed.
Concur — Breitel, J.P., Valente, McNally, Steuer and Bastow, JJ.