
    Lillie Schwartz, Plaintiff, v. Isador Lubin, as Industrial Commissioner of the State of New York, Defendant.
    Supreme Court, Special Term, New York County,
    May 16, 1958.
    
      J oseph Schwarts for plaintiff.
    
      Louis J. Lefkowits, Attorney-General (Hyman Amsel of counsel), for defendant.
   William C. Hecht, J.

This suit was instituted against defendant, Isador Lubin, not in his individual capacity but solely as Industrial Commissioner of the State of New York. Plaintiff seeks to examine him before trial as an adverse party.

In the case of City of Buffalo v. Hanna Furnace Corp. (305 N. Y. 369) the Court of Appeals held that upon a proper showing a State oficial could be examined before trial as a witness but he could not, in the absence of statutory authority, be examined as a party (cf. People ex rel. Port Petroleum v. Atlantic Coast Terminals, 2 A D 2d 153).

The case of Matter of Lowndes v. Connolly (264 App. Div. 806) is distinguishable. The court there held that an examination of the defendants was proper because of plaintiff’s claim that certain employees of the State had acted maliciously and the proceeding was directed against them as individuals by reason of their acts and conduct. There is no such claim in the instant case.

Motion to vacate notice is granted.  