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LESTER J. BESEN v. C. P. L. YACHT SALES (01/13/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


January 13, 1969

LESTER J. BESEN, RESPONDENT,
v.
C. P. L. YACHT SALES, INC., ET AL., APPELLANTS

In an action to rescind the sale of a motorboat and to recover damages, defendants appeal from so much of an order of the Supreme Court, Westchester County, entered May 20, 1968, as (1) in granting their motion to take the deposition of a witness limited the deposition to the issues raised by the pleadings and (2) granted plaintiff's cross motion to continue the deposition of defendant C. P. L. Yacht Sales, Inc., by its service manager, Charles Smith.

Beldock, P. J., Christ, Benjamin, Munder and Martuscello, JJ., concur.

Order modified, on the law and the facts, by striking from the last ordering paragraph thereof the words "be strictly limited to the issues raised by the pleadings" and by substituting in place thereof the words "be limited to matters which are material and necessary in the defense of the action." As so modified, order affirmed insofar as appealed from, without costs. In our opinion it was an improvident exercise of discretion to limit the examination of the witness Parker to the issues raised by the pleadings (CPLR 3101, subd. [a]; Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403).

19690113

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