Opinion
02-06-1950
Sundell Company, Inc., Plaintiff, v. Pioneer Building-Loan & Savings Association of Troy, Defendant.
William K. Sanford for plaintiff.
Murphy, Aldrich, Guy, Broderick & Simon for defendant.
TAYLOR, J.
The plaintiff seeks "an order directing the taking of the testimony of the defendant corporation by the oral testimony under oath of Paul V. Martin as a former officer and employee of the defendant corporation * * *" upon matters specifically set forth in the notice of motion. Such may not be ordered. (Cocolicchio v. Emigrant Industrial Sav. Bank, 248 App. Div. 196; McGowan v. Eastman, 271 N.Y. 195; Koolery v. Lindemann, 195 Misc. 218; Civ. Prac. Act, § 289.)
The "special circumstances" which may in an appropriate case render it proper to take a deposition apply only to depositions of a witness. The only requirement for taking the deposition of a party is that it be "material and necessary in the prosecution or defense of the action." (Civ. Prac. Act, § 288; Breault v. Embossing Co., 253 App. Div. 175.) Where the adverse party is a corporation, its testimony may only be taken through the testimony of "one or more of its officers, directors, agents or employees" (Civ. Prac. Act, § 289) and former employees or officers are not within the purview of the statute.
The motion is denied, without costs.
Submit order.