Dodge v. Richmond

By this action, the plaintiff seeks recovery for commissions in connection with the sale of the assets of a steel company, under an alleged agreement for the payment thereof by the defendant. The defendant claims that at a hearing held by the Securities and Exchange Commission, the plaintiff testified, in effect, that there was no arrangement by which he was to be compensated for the sale. Special Term denied the defendant’s motion for discovery and inspection of a certified copy of the minutes of the plaintiff’s testimony before the Securities and Exchange Commission. It appears that the defendant is unable to obtain a copy of that testimony without the authorization or consent of the plaintiff and that the plaintiff has refused such consent. Under the circumstances, this testimony may be material to the substantive issue. The order is therefore modified, with costs to the appellant, to provide that the plaintiff is directed to procure a certified copy of his testimony, if he does not have it. If the defendant, by subpoena duces tecum, requires the production of that testimony, it is to be delivered to the trial court at the *843commencement of the trial for determination as to its use, if any, at the trial. Settle order. Concur — Botein, P. J., M. M. Frank, Yalente, McNally and Bergan, JJ.