Opinion
May 5, 1970
Order, entered November 20, 1969, unanimously modified on the law and the facts, and in the exercise of discretion to provide that the defendant Tobey Kirk shall pay the reasonable expenses incurred by plaintiff's attorney in taking the oral depositions of witnesses in France, and order otherwise affirmed, without costs and disbursements. (See Goffin v. Esquire, Inc., 271 App. Div. 955; Drake v. Line-A-Time Mfg. Co., 226 App. Div. 717; Matter of Interocean Mercantile Corp., 207 App. Div. 164; MacDonald v. Wills Co., 196 App. Div. 914; see, also, Walborsky v. Wolf, 28 A.D.2d 1120; Matter of Smith, 1 A.D.2d 1032. ) The expenses may include the cost of retaining an attorney in France to represent the plaintiff in the taking of the depositions, but may not include traveling expenses of an attorney from the United States. The order herein shall provide for the payment to plaintiff's attorneys by the defendant, Tobey Kirk, of $300 on account of such expenses within 30 days after entry of order herein and shall provide for the payment of the balance of the expenses incurred within 20 days after the furnishing to the attorneys for said defendant of a verified and itemized statement of the amount thereof, the statement to be furnished on the completion of the taking of the depositions. In the event of default in making the advance payment of $300, the defendant shall be deemed to have waived the right to take the depositions. In the event of the default in payment of the balance of expenses as shown on the verified statement, the plaintiff may apply for and have judgment in this action for the amount of such balance. The order shall further provide that, in the event the defendant Tobey Kirk prevails in this action as against the plaintiff, it may tax the sums paid as costs to be paid by plaintiff. Settle order on notice.
Concur — Eager, J.P., McGivern, Markewich and Nunez, JJ.