
    HEIBERG et al. v. HASLER.
    Civil Action No. 818.
    District Court, E. D. New York.
    March 19, 1941.
    See, also, D.C., 1 F.R.D. 735.
    Jules Chopak, of New York City, for plaintiffs (for motion).
    Edward M. Fuller, of New York City, for defendant (opposed).
   BYERS, District Judge.

That the plaintiffs are entitled to take the deposition of the defendant is clear and uncontradicted; the only question for decision is as to the time and place. The affidavit of defendant’s attorney, filed March 13, 1941, is relied upon as to the defendant’s whereabouts, condition of health and intention not to be in this city prior to May 15, next.

She is said to be in Catcay, Bahama Islands, and if it is her preference to be there examined before the nearest consular agent of the United States or otherwise as provided in Federal Rules of Civil Procedure, rule 28(b), 28 U.S.C.A. following section 723c, the expense of plaintiffs’ attorney in going to and fro, and in the place of examination, must be borne by the defendant, and guaranteed or secured in advance. In the alternative, the examination will proceed in the office of the Clerk of this court, not later than May 12, 1941, and the pend-ency thereof shall not constitute a ground of opposition to the right of the plaintiffs to have the cause marked ready on the first day of the June term for the trial of jury cases.

This disposition of plaintiffs’ motion ought not to deter counsel from making reasonable efforts to stipulate the facts in so far as they are not in controversy.  