Opinion
January 5, 1938.
Kepecs Frischer, for the plaintiff.
Fitelson Mayers, for the defendant.
Motion for an examination of defendant is granted as to all items. The plaintiff is a non-resident and resides in Budapest, Hungary. The defendant is a resident of California. Defendant was served with process in the city of New York while on a visit. A motion to vacate the service and have this court decline jurisdiction on the facts of the case was denied. The plaintiff desires the examination before trial as to matters denied by defendant in his answer. The items of examination are proper. The issue presented is whether or not this court should compel the defendant to come to New York for the purpose of the examination. ( Meinig Co. v. United States Fastener Co., 194 A.D. 397; Knickerbocker Forty-Second St. Co. v. Littmann, 249 id. 502.) The defendant asserts that the application is but a plan to coerce him into making a settlement. The court will not in the circumstances require the defendant to come to New York specifically for the purpose of the examination and will leave the plaintiff to seek relief by written interrogatories, subject, however, that if the defendant attends upon the trial the plaintiff shall be entitled to the examination here sought on all items and require the production of the papers as authorized by section 296 of the Civil Practice Act, and to that extent it will be ordered that no testimony will be permitted by defendant should he personally appear on the trial, and the right to direct such examination as to the time and place is left with the trial court. Settle order on notice accordingly.