SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
December 16, 1968
AMERICAN NATIONAL BANK OF SAINT PAUL, RESPONDENT,
BERNARD H. LA LONE, JR., ET AL., APPELLANTS
In an action against borrowers to recover on a promissory note and/or the underlying debt, defendants appeal from an order of the Supreme Court, Nassau County, dated April 4, 1968, which granted plaintiff's motion for pretrial examination of its former employee, to be held in Minnesota.
Rabin, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.
Order modified, on the law and the facts, by adding a decretal provision thereto (1) that the expenses of attendance by counsel for the respective parties at the oral deposition in Minnesota be borne in the first instance by plaintiff, which expenses are such as may be taxed as costs by the prevailing party, if incurred by such party, and (2) that a physical examination of this witness shall be had, in the city and State where the oral depostition is to be taken, immediately prior to the taking of the oral deposition. As so modified, order affirmed, without costs. Since respondent desires to conduct the oral examination outside the State, it is only fair and equitable that the expenses of the examination be borne by it in the first instance. In fact, on the argument of the appeal, respondent's counsel so agreed.
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