Opinion
November 6, 1961
In an action against defendant, individually and as executrix of the last will and testament of Sam Lynn, deceased, to recover upon two promissory notes, each for $10,000, allegedly made by the decedent, defendant appeals from the following two orders of the Supreme Court, Kings County, both dated June 19, 1961: (1) an order granting plaintiff's motion to vacate defendant's notice for the examination of a witness, one Aaron Lynn, not a party to the action, and to vacate a subpoena duces tecum issued in connection therewith, without prejudice to defendant's right "to make a motion to examine Aaron Lynn as a witness." (2) An order granting plaintiff's motion to modify defendant's notice to examine her (plaintiff) before trial, to the extent of striking out two items in said notice, and substituting another provision in lieu thereof. The first order granting plaintiff's motion to vacate the notice to examine Aaron Lynn as a witness and to vacate the subpoena duces tecum issued to him, is reversed, without costs and the motion denied. The examination of a witness who is not a party may be had upon notice (Civ. Prac. Act, §§ 288-290; § 296, subd. 2; § 299), and a subpoena duces tecum may be issued in connection therewith (Civ. Prac. Act, § 296). As stated, the action is to recover upon two promissory notes, each in the amount of $10,000, allegedly made by the decedent. It is alleged that the consideration for the first note was paid in cash, and that the consideration for the second note was a check to the order of Dyckman Broad Corporation, with which the decedent was involved in a real estate transaction. It appears that Aaron Lynn is the plaintiff's father and that the decedent Sam Lynn was his cousin. The entire transaction was negotiated and consummated by Aaron Lynn and the decedent. Defendant had no part in the negotiations and had no knowledge of more than one loan. Aaron Lynn is the only living person known to have knowledge of the transaction. Upon this record defendant is entitled to the examination of Aaron Lynn as a witness and to the production of books, papers and documents under the subpoena duces tecum (cf. Malagoli v. Bernstein, 1 A.D.2d 1042). Order granting plaintiff's motion to modify defendant's notice to examine plaintiff before trial, affirmed, without costs. In view of the provision in such order substituting for the two excised items, one item directing the production of "All pertinent books, records and documents of the plaintiff" for use pursuant to section 296 of the Civil Practice Act, defendant is not aggrieved by the order. Upon the examination, if it should appear that any of the books, papers and records specified in the items excised from the notice, is relevant and material to the issues, its production may be compelled under the notice as modified by the order. The examinations under both notices of examination shall proceed on five days' notice or on any other date or dates mutually fixed by the parties. Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.