Stern v. Inwood Town House, Inc.

Order, entered on February 5, 1964, granting plaintiff’s application for an examination before trial of the defendants, and suppressing the testimony of the deceased witness, affirmed, with $30 costs and disbursements to the respondents. The appeal from the order entered on March 9, 1964 denying plaintiff’s application for reargmnent is dismissed as being nonappealable. The transcript of the examination of the deceased witness establishes that the examination had not been completed. In fact, the attorney for the plaintiff expressly so stated when the examination was adjourned. To permit the introduction of the deposition at trial would in effect deprive the defendants of the right they had to cross-examine the witness under the then applicable rule 129-a of the Rules of Civil Practice (now CPLR 3113, subd. [e]). Accordingly, the direction for suppression was proper. It should be noted, however, that such suppression is no bar to the introduction into evidence of any portions *651of the testimony of the witness if, based upon a proper foundation, they may be received as admissions or are properly admissible in any other manner. Settle order on notice fixing date for examination to proceed. Concur - Botein, P. J., Breitel, Rabin, Eager and Staley, JJ.