
    Della M. Grattan et al., Doing Business as D. M. Grattan Co., Respondents, v. Societa Per Azzioni Cotonificio Cantoni, Appellant, et al., Defendant.
   Callahan, J.

(dissenting in part). The appellant, an Italian corporation located abroad, has been ordered to appear for examination before trial by three designated persons, with an alternative provision that if these persons are not going to appear at the trial as witnesses, then such examination is to be had by such officers, agents or employees having knowledge of the facts as will appear and testify at the trial of the action. Appellant is directed to serve notice at least ten days before the expected arrival of said persons and produce them not later than five days before the trial.

I vote to modify the order appealed from by striking the alternative provisions of the order. It seems to me that they amount to a provision for the examination in advance of trial of any person connected with the appellant and intended to be called as a witness. This is unauthorized by section 288 of the Civil Practice Act, which permits examinations of designated persons when their testimony is shown to be material and necessary to the party obtaining the examination. Appellant should not be required to name its witnesses or submit them for cross-examination in advance of trial merely because they are to be witnesses. Appellant, in fact, should not be required to determine which witnesses it will call until plaintiff’s proof is in.

Peck, P. J., Cohn, Bastow and Botein, JJ., concur in decision; Callahan, J., dissents, in part, in opinion.

Order affirmed, with $20 costs and disbursements to the respondents. The date for the examination to proceed shall be fixed in the order. Settle order on notice.  