
    Francis P. McManus and Others, Respondents, v. Howard M. Durant, Appellant, Impleaded with George B. Sheldon and Others, Copartners, Trading as W. C. Sheldon & Co., and Union Bag and Paper Company, a Corporation, Defendants.
    First Department,
    February 10, 1911.
    Discovery — examination of party before trial — cross-examination.
    A defendant has the right to cross-examine orally a plaintiff about to be examined before trial at the instance of his coplaintiffs. This is.so although a stipulation had been made before the joinder of issue by the attorney who then represented all the defendants for the use of written cross-interrogatories, where it appears that he told the plaintiff’s attorneys at the time that he did not wish'to prejudice the rights of the moving defendant, who was about to obtain other counsel.
    Appeal by the defendant, Howard M. Durant, from an order of ; the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1911, denying the said defendant’s motion to be relieved from a stipulation that a commission issue for the examination of the plaintiff McManus upon written interrogatories.
    
      Butler & Kilmer [ Walter P. Butler of counsel], for the appellant.
    
      Rose & Putzel [Benjamin G. Paskus of counsel], for the respondents.
   Miller, J.:

• There can be no question but that the defendant should be afforded the right to orally examine the party whose deposition is about to be taken unless he has waived that right. The plaintiffs have proposed 304 interrogatories, and it is evident that they rely mainly upon the testimony of the plaintiff McManus to establish their case. Irrespective of whether it be practicable to frame cross-interrogatories, the defendant should have the right to cross-examine his adversary for reasons so obvious that it-is not deemed necessary to state them.

Although the - order was granted upon stipulation, we think it should be modified so as to permit an oral cross-examination. The . stipulation was made before issue joined, and it may be that it was exacted by plaintiffs as a condition of granting an extension of time to answer. But one of the attorneys who then represented all of the defendants informed one of the plaintiffs’ attorneys that other counsel were to be substituted for the appellant and that he did not desire .to take any steps which would affect or prejudice the rights of said defendant, preferring that any steps which might affect his rights should be taken- by new counsel. It was plainly proper to have other counsel substituted, as it is not unlikely that the interests of the appellant and of the other defendants may conflict. That fact was evidently appreciated by counsel for both parties. The plaintiff's have lost no lights in the meantime.

. The order should be reversed, without costs, and the motion granted to the extent of modifying the order of December 23,1910, so as to provide for aiy oral, examination of the witnesses by the defendant Durant and by the plaintiffs, if they so elect, upon con- ' dition, however, that the appellant waive the notice of the time and place of taking the deposition required by section 899 of the Code of Civil Procedure and consent to take the deposition at any time appointed by the plaintiffs upon not less than thirty days’ notice thereof after notice of the entry of the order herein.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Order reversed, without costs, and motion granted to the extent and on the terms stated in opinion. Settle order on notice.  