SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
December 11, 1969
KATHLEEN BOTTALICO ET AL., RESPONDENTS,
SEABOARD COAST LINE RAILROAD COMPANY, APPELLANT
Concur -- Stevens, P. J., Eager, Tilzer, Markewich and McNally, JJ.
If plaintiffs elect to examine by open commission, the parties shall pay their respective expenses, which shall be taxed as costs by the prevailing party. Otherwise the order is affirmed. The requirement that witnesses travel a thousand miles is onerous and likely unnecessary. If the witnesses should come to New York for the trial or for any reason prior thereto, plaintiffs shall be advised beforehand and accorded the opportunity of conducting the examination directed. (See Pakter v. Lilly & Co., 19 A.D.2d 810; Piel v. Lilly & Co., 19 A.D.2d 810; Winds v. Hydropress, 279 App. Div. 1005.) Defendant's brief offers to submit the witnesses for examination in New York City about one week before trial.
Order entered May 20, 1969, denying defendant's motion for a protective order, unanimously modified on the facts and the law, without costs or disbursements, to provide that the examination of defendant's employees shall be in Jacksonville, Florida, and, at the election of plaintiffs, shall be by written interrogatories or open commission.
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