Opinion
November 30, 1967
Order entered June 22, 1967, denying defendant's motion to vacate plaintiff's notice to take the deposition of a nonresident witness without the State pursuant to CPLR 3108, unanimously modified, on the law and the facts and in the exercise of discretion, to provide that appellant may, within 20 days from the date of the order entered herein, serve on respondent written notice that he elects to conduct, at his own expense, oral cross-examination of the witness; and in such event respondent shall have the right, at his own expense, to be present by counsel in the foreign State and conduct oral direct examination of the witness. As so modified, the order is affirmed, without costs and without disbursements to either party. The plaintiff had the right under CPLR 3108 to proceed upon written questions. The general rule is that a commission for the taking of testimony without the State issue upon written questions. ( Hawkinson v. Clayton Packing Co., 275 App. Div. 948.) Nevertheless, defendant, if he so desires, should, in the discretion of the court, be permitted, at his own expense, to conduct an oral cross-examination of the witness. In the absence of unusual circumstances, courts will require the party seeking an oral commission to pay the expenses of such oral examination. ( Cole v. Manufacturers Trust Co., 253 App. Div. 749; Ryan v. Saunders, 45 Misc.2d 1089, 1091.) As indicated in Ryan v. Saunders, where an opposing party has elected to conduct an oral cross-examination, the party seeking the deposition upon written questions may also elect, at his own expense, to convert the deposition process into an oral examination of the witness. In either event, the expense incurred is to be taxed as a disbursement by the party ultimately succeeding in the action. (See Fitzgerald v. Fitzgerald, 262 App. Div. 708.)
Concur — Botein, P.J., Eager, Capozzoli, McGivern and Bastow, JJ.