Mihalek v. Yonkers Trotting Ass'n

Defendant and third-party plaintiff, Yonkers Trotting Association, Inc., has moved the court for an order vacating the notice of examination before trial served by the attorneys for plaintiff.

In April, 1956, the said defendant and third-party plaintiff and the defendant Stevens had an examination of each other pursuant to notice and, also pursuant to notice, an examination of the plaintiff. The attorney for plaintiff did not serve a cross, *1004notice to examine the defendants at that, time and declined to participate in their examinations of each other, It is now contended that under rule. 121-a of the Rules of Civil Practice where a party is served with a notice of examination before trial, he must serve a five-day cross notice, and, in the event that he fails to do so, he may only obtain an examination by court order.

Rule 121-a must be read as an entirety. It sets forth the procedure for examining a party before trial, pursuant to notice. It provides that such an examination may be had “ at any time after the service of an answer ” and that the examination may be conducted by “ any party” to the action. Subsequent provisions of the rule do not limit the time during which the examination may be held but merely set forth the number of days notice required. Ten days’ notice must be given except that the party to be examined “ may ”, upon five days’ notice, examine any other party at the same time and place. If the party to be examined does not wish to conduct an examination at the same time and place he need not do so. The provision allowing him to do so.upon five days’ notice is merely permissive. If he does not choose to avail himself of that right he may nevertheless,-upon 10 days’ mo tice, examine any other party “ at any time ” after joinder of issue.

Whether the interpretation advocated by the moving party is desirable in that it is more convenient for all examinations to be held at the same time and place is not for this court to decide. As now written, the rule is clearly otherwise.

Motion denied. Examination will be held at the office of the attorney for the plaintiff at 10:00 a.m. on July 9, 1958/ unless counsel agree upon another time and place.

Submit order.