Opinion
March 22, 1954.
In an action on a promissory note for $2,000, brought by a resident of Florida against a resident of New York, in which the answer asserts a defense of payment, the order dated May 6, 1953, grants plaintiff's motion for the issuance of a commission to take his and his wife's testimony in Florida upon written interrogatories and cross-interrogatories. Defendant appeals upon the ground that an order, dated November 15, 1951, directs plaintiff to appear for examination at least ten days before trial of the action, and plaintiff has not appeared; and on the ground that the order should provide for an open commission, with the right of defendant to have oral cross-examination, and with the expenses of attendance upon the examination to be paid by plaintiff. Order reversed, with $10 costs and disbursements, and motion denied, without costs, and with leave to renew after plaintiff has been examined, as provided in the order, dated November 15, 1951. The courts will give consideration to the financial hardship upon a nonresident party in attending an examination in this State. ( Duncan v. Jacobson, 187 Misc. 918, affd. 274 App. Div. 762.) But the plaintiff having invoked the jurisdiction of the New York court may not, merely because of his nonresidence, deprive the defendant of the right to ordinary oral cross-examination, at least until he has complied with the order directing his examination before trial. Furthermore, as to the witness, plaintiff's wife, although she is outside the State of New York, there is no reason to believe that she will be unable to appear and testify at the trial. Nolan, P.J., Adel and Beldock, JJ., concur; Wenzel and MacCrate, JJ., dissent and vote to affirm the order on condition that it be deemed to be without prejudice to the examination of the plaintiff heretofore ordered.