Opinion
October 30, 1967
Appeal by defendant, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated August 23, 1966, as directed defendant to submit to a pretrial examination and to produce certain books, records and documents. Order modified by (1) striking from subdivision B of the first ordering paragraph thereof (a) the provisions directing that the examination take place at Special Term on the date specified and (b) all the matter appearing thereafter in said subdivision B and (2) adding in place thereof a provision that (a) the examination of defendant shall be conducted by written interrogatories or open commission in San Francisco, California ( Bolognino v. Anheuser-Busch, 279 App. Div. 819), the choice between the two methods to be plaintiffs', with each side bearing its own expenses of the examination, and without prejudice to plaintiffs' right to a further examination in New York prior to trial, if necessary (cf. Nardelli v. Stam, 13 A.D.2d 698) and (b) plaintiffs may apply to Special Term for an appropriate order implementing this direction. As so modified, order affirmed insofar as appealed from, without costs. Under the circumstances presented, it was an improvident exercise of discretion to direct defendant to submit to pretrial examination at Special Term, Kings County. Beldock, P.J., Christ, Brennan, Hopkins and Munder, JJ., concur.