New York Feather Co. v. Spewack

Decision Date10 April 1962
Citation231 N.Y.S.2d 38,34 Misc.2d 557
PartiesNEW YORK FEATHER CO., Inc., Plaintiff, v. Benjamin SPEWACK and Violet Spewack, Defendants.
CourtNew York Supreme Court

Louis G. Greenfield, New York City, for plaintiff.

Leon Shapiro, New York City, for defendants.

MATTHEW M. LEVY, Justice.

This is a motion by the plaintiff to vacate the defendants' notice to examine the plaintiff before trial, by Manny York, its president. In so far as the plaintiff objects to the examination in general, the grounds relied upon are plainly meritless. But there is one issue presented here which does warrant some consideration.

As I have said, defendants desire to examine the plaintiff by its president. The plaintiff, however, desires to submit on its behalf one Judd York, a former vice-president. This substitution is objected to by the defendants. They argue that they are entitled to examine a present officer of the plaintiff corporation, and that they should not be required to examine one who is not.

A related issue usually arises when the party to be examined seeks to produce an officer or employee as the witness other than the one selected by the examining party. It is now well established that the examining party does not, in the first instance, have the right to choose who will depose on behalf of the corporate party being examined. The initial choice--to be made, of course, in good faith (Kozak v. 244 East 2nd Realty, Inc., 25 Misc.2d 437, 439, 196 N.Y.S.2d 35, 37)--rests with the latter, and, if the person so chosen has no or inadequate knowledge, or some other officer or employee of the corporation has more direct knowledge, there is adequate power to require the party to produce such additional witness (United States Overseas Airlines v. Cox, 283 App.Div. 31, 126 N.Y.S.2d 209; Deutsch v. City of New York, 200 Misc . 864, 107 N.Y.S.2d 293).

Here, however, the party being examined has chosen as its witness one not now its officer or employee, and the question is whether that is permissible. In the circumstances presented in the case at bar, I hold that it is.

I recognize that, if the converse were in issue, and the defendants sought to examine the plaintiff by a former officer or employee, that would not be directed by the court (McGowan v. Eastman, 271 N.Y. 195, 198, 2 N.E.2d 625, 626; Cocolicchio v. Emigrant Industrial Savings Bank, 248 App.Div. 196, 288 N.Y.S. 805), because a former officer or employee would not normally have the power to bind a party by way of any admissions he might make in his testimony (McCabe v. Interstate Iron & Steel Co., 262 App.Div. 777, 27 N.Y.S.2d 862). But that rule is inapplicable here, for the critical...

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