
    Robert J. GILL, Plaintiff, v. Julius STOLOW and Harry Stolow, co-partners, doing business under the firm name and style of J. & H. Stolow, Defendants.
    United States District Court S. D. New York.
    June 24, 1955.
    See also 16 F.R.D. 9.
    Milbank, Tweed, Hope & Hadley, New York City, for plaintiff.
    Joseph F. Minutólo, New York City, for defendants.
   DIMOCK, District Judge.

Defendants move for an order forbidding the taking of the deposition of defendant Harry Stolow, notice of which has been served by plaintiff. On September 11, 1952, defendants made a similar motion for an order forbidding the taking of the deposition of defendant Harry Stolow. That motion was denied by Judge Conger by order dated October 6, 1952. Defendants expressly concede that the situation remains the same except that plaintiff has had full and complete examinations of other witnesses and has waived the right to examine defendant Harry Stolow.

It would be an extraordinary case where examination of other witnesses would take the place of the examination of a party. This is certainly not that extraordinary case.

The claim of waiver seems to be based upon the fact that defendant Harry Stolow has been continuously in Europe since Judge Conger’s order and that plaintiff has taken no affirmative steps in a formal way toward securing his examination until the service of a notice dated May 31, 1955. In the meantime, plaintiff’s counsel has offered to have defendant Harry Stolow’s deposition taken upon oral questions in Europe, plaintiff to pay his attorney’s expense in connection therewith. There has been no waiver.

The motion is denied.  