Sundell Company, Inc. v. Pioneer Building-Loan & Savings Ass'n

The plaintiff seeks “ an order directing the taking of the testimony of the defendant corporation by the oral testimony under oath of Paul V. Martin as a former officer and employee of the defendant corporation * * *” upon matters

specifically set forth in the notice of motion. Such may not be ordered. (Cocolicchio v. Emigrant Industrial Sav. Bank, 248 App. Div. 196; McGowan v. Eastman, 271 N. Y. 195; Koolery v. Lindemann, 195 Misc. 218; Civ. Prac. Act, § 289.)

The “ special circumstances ” which may in an appropriate case render it proper to take a deposition apply only to depositions of a witness. The only requirement for taking the deposition of a party is that it be “ material and necessary in the prosecution or defense of the action.” (Civ. Prac. Act, § 288; Breault v. Embossing Co., 253 App. Div. 175.) Where the adverse party is a corporation, its testimony may only be taken through the testimony of “ one or more of its officers, directors, agents or employees ” (Civ. Prac. Act, § 289) and former employees or officers are not within the purview of the statute.

The motion is denied, without costs.

Submit order.