Harry W. Walborsky v. Emile Wolf

The plaintiff had the right under CPLR 3108 to proceed upon written questions. The general rule is that a commission for the taking of testimony without the State issue upon written questions. (Hawkinson v. Clayton Packing Co., 275 App. Div. 948.) Nevertheless, defendant, if he so desires, should, in the discretion of the court, be permitted, at his own expense, to conduct an oral cross-examination of the witness. In the absence of unusual circumstances, courts will require the party seeking an oral commission to pay the expenses of such oral examination. (Cole v. Manufacturers Trust Co., 253 App. Div. 749; Ryan v. Saunders, 45 Misc. 2d 1089, 1091.) As indicated in Ryan v. Saunders, where an opposing party has elected to conduct an oral cross-examination, the party seeking the deposition upon written questions may also elect, at his own expense, to convert the deposition process into an oral examination of the witness. In either event, the expense incurred is to be taxed as a disbursement by the party ultimately succeeding in the action. (See Fitzgerald v. Fitzgerald, 262 App. Div. 708.) Disposition As so modified, the order is affirmed, without costs and without disbursements to either party.