
    The Gramatan National Bank and Trust Company of Bronxville, Appellant, v. Sagamore Apartments, Inc., and Others, Respondents.
   Order in so far as an appeal is taken therefrom reversed on the law and the facts, with ten dollars costs and disbursements, and the motion to vacate the notice to take the deposition of the defendants as adverse parties before trial denied — the examination to proceed at the place and hour designated in the notice five days after the entry of the order. Under the circumstances disclosed by the record the plaintiff is entitled to the exercise of the discretion of the court in its behalf for the purpose of granting examination of the defendants to enable the plaintiff to controvert defenses by avoidance. (Palmison v. First National Bank & Trust Co., 234 App. Div. 797; Schweinburg v. Altman, 131 id. 795.) The right to examine a party, even where such party has the affirmative, rests in discretion (Public National Bank v. National City Bank, 261 N. Y. 316); and in this case such discretion is properly exercised for the purpose of facilitating the trial. (Marine Trust Co. v. Nuway Devices, Inc., 204 App. Div. 752, 753.) As to the examination of William A. Daly, special circumstances warranting his examination sufficiently appear so that his examination in certain respects was allowed at Special Term. (See Bloede Co. v. Devine Co., 211 App. Div. 180, 183.) The witness cannot, of course, be compelled to divulge confidential communications. Lazansky, P. J., Carswell and Davis, JJ., concur; Young and Hagarty, JJ., dissent and vote for affirmance.  