
    (64 Misc. Rep. 464.)
    PEOPLE v. LINCOLN SPRING CO. SAME v. NEW YORK CARBONIC ACID GAS CO. SAME v. GEYSER NATURAL GAS CO.
    (Supreme Court, Special Term, Saratoga County.
    September, 1909.)
    Discovery (§ 61*)—Examination of Party Before Trial—Vacation of Order.
    Where plaintiff, when a cause was called for trial, announced itself ready to proceed, and the officers of the corporation defendant, for whose examination an order had been granted, had been subpoenaed to attend as witnesses, the order for examination should be vacated.
    [Ed. Note.—For other cases, see Discovery, Dec. Dig. § 61.*]
    ♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
      . Actions by the People against the Lincoln Spring Company, against the New York Carbonic Acid Gas Company, and against the Geyser Natural Gas Company. Order to examine officers of defendants before trial vacated.
    See, also, 128 App. Div. 42, 112 N. Y. Supp. 381.
    Edward F. O’Malley, Atty. Gen. (Charles C. Lester and Rockwood, McKnight & McKelvey, of counsel), for plaintiff.
    Edgar T. Brackett, for defendants.
   McLAUGHLIN, J.

The fact is not disputed that the in each of the above cases, when the same was first called for trial, announced itself ready to proceed; and on the argument, of these motions the fact was not disputed or controverted in any way that each of, the officers whose examination was sought had been subpoenaed to attend as a witness at thé trial of the actions. This being so, I do not see the necessity of an examination prior to the trial. The facts sought to be proved by the examination can, so far as appears, be established by these officers when sworn as witnesses at the trial. If, however, it shall then appear that an examination is necessary in order to properly present the plaintiff’s case, an application may be made to the learned justice sitting at the trial.

It seems to me, therefore, the orders permitting the examination should be vacated, without prejudice to the plaintiff’s right to apply, at or during the course of the trial, to the learned justice presiding at the trial for the examination of these same officers, or any of them, upon other or additional papers. Each motion is therefore granted, with $10 costs.

Motion granted, with $10 costs.  