Cataldo v. Long Island Rail Road 268 A.D. 1054

— Action to recover damages for personal injuries. Order denying plaintiff’s motion for the examination before trial of the defendant by its employee Case reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, the examination to proceed on five days’ notice. The examination should have been granted since Case was at the time of the accident and still is an employee of the defendant and one whose testimony is material and necessary. (Civ. Prac. Act, § 289.) Further, special circumstances existed warranting the examination as the witness was presumably hostile. (Favole v. Gallo, 261 App. Div. 974, Zirn v. Bradley, 257 App. Div. 832.) Close, P. J., Hagarty, Carswell, Adel and Lewis, JJ., concur.