
    Richard Kohloff et al., Plaintiffs, v. The Bronx Savings Bank, Defendant.
    Civil Court of the City of New York, Special Term, New York County,
    September 25, 1962.
    
      Casey, Lane & Mittendorf for defendant. Seligson, Rothman & Hamada for plaintiffs.
   Robert V. Santangelo, J.

Motions No. 88 and No. 89 are considered together.

Defendant moves for an order appointing a Referee to take depositions of three witnesses pursuant to section 307 of the Civil Practice Act and rule 120 of the Rules of Civil Practice.

Detective Terulli is a person who possesses pertinent and material information which he refuses to disclose and which bears upon the merits of plaintiff’s adjourned motion for summary judgment (see Tripp, A Guide to Motion Practice [Rev. ed.], § 73, pp. 205-206 and cases cited therein).

As to Dr. Lebowitz, his testimony is privileged pursuant to sections 352 and 354 of the Civil Practice Act. The defendant has shown no waiver by the plaintiff of said privilege.

As to Father Reilly, his testimony is privileged pursuant to section 351 of the Civil Practice Act. A confession by a penitent to a clergyman for spiritual advice, aid or comfort is privileged even though the penitent is not a member of the church to which she seeks spiritual advice (see Richardson, Evidence [8th ed.], § 441, p. 429; Matter of Swenson, 183 Minn. 602).

Accordingly, the motion is granted to the extent only that Detective Terulli is directed to appear before William B. Sandler, Esq., of 32 Broadway, N. Y., who is hereby designated as Referee herein, at a time and place to be agreed upon by counsel for both parties and the Referee.

Plaintiffs ’ motion for summary judgment should be submitted after the deposition of Detective Terulli has been taken.  