(dissenting). The majority of the court in its opinion agrees that under the circumstances shown in the record, the defendants should be permitted to examine .the witness, but find no authority for the court to grant the order. I cannot agree. The language of the statute gives the authority. In plain and simple language section 288 of -the Civil Practice Act says: “ Any party to such an action also may cause to be so taken the testimony of any other person, which' is material and necessary, where such person * *’ * resides at a greater distance from the place of trial than one hundred miles * * * or other special circumstances render it proper that his deposition should be taken.”
It is not disputed that Mr. Tallamy resides more than one hundred miles from Buffalo. That there are “ special circumstances [which] render it proper that his deposition * * * be taken ” becomes clear upon the reading of New York State *626Thruway Authority Act (L. 1950, ch. 143), particularly subdivision 8 of section 356, and the intent and purpose of that statute indicates, in my opinion, that his testimony is material and necessary to the defendants’ case.
The majority of the court agrees that there is no judicial precedent, directly in point, which holds that an officer or employee of a public corporation cannot be examined as a witness under section 288, but feel bound by the decisions holding that an officer or employee of the State or of a municipal corporation may not be examined as a party. In 1941 these decisions came to the attention of the Legislature and section 292-a was added to the Civil Practice Act (L. 1941, ch. 921) which restored the right, taken away by decisions, to examine officers or employees of a public corporation as a party. Prior to this and in the year 1939 (L. 1939, ch. 860), the Legislature by adding subdivision 2 to section 17 of the Court of Claims Act had permitted a claimant to examine an officer or employee of the State in a proper case. As the language of section 288 of the Civil Practice Act is clear and as no judicial precedent is called to our attention which changes its meaning as to the examination of an officer of a public corporation as a witness, I see no reason why this court, in circumstances such as these, is required to look to precedents overruled by legislative enactments, to deny relief that all concede is material and necessary to these defendants.
There is another reason why the examination should be permitted. There can be no question but that the information sought must be made available to the defendants and to the court on the trial of the issues. If the deposition is not taken before trial, the defendants will undoubtedly be compelled to subpoena the witness at the trial and he may be called upon to bring with him many records and plans. Certainly an examination at his office in Albany would better suit his convenience and take far less time than to attend court in Brie County.
All concur, except Piper, J., who dissents and votes for reversal and for granting the motion, in an opinion.
Present — Taylor, P. J., McCurn, Kimball, Piper and Wheeler, JJ.
Order affirmed, with $10 costs and disbursements. [See 281 App. Div. 801.]