By notice served before answer filed, plaintiff seeks to take the deposition of defendant pursuant to Federal Rules of Civil Procedure, rule 26, 28 U.S.C.A. following section 723c. Defendant moves to vacate said notice because not in compliance with Rule 26, which provides that an examination before answer may be had only upon leave of the court.
The defendant is technically accurate in objecting on the grounds that the notice is premature. F.R.C.P. 26(a); Rejsenhoff v. Colonial Navigation Co., D.C.S.D.N.Y., 1 F.R.D. 395.
From the opposing affidavit, however, there is reason to believe that defendant may leave the jurisdiction of this court, thus rendering a future attempt to take his deposition difficult. No reasons appear why an order should not be made directing the examination to be taken.
Pursuant to F.R.C.P. 30(b), an order will be made directing defendant to attend for examination at the place indicated in the notice herein or such other place as may be agreed upon, on April 17, 1940 (3 days after the last day to. answer), or, if the time to answer is enlarged by motion or otherwise, then on a day three days after answer is filed.
The motion is denied on the above conditions. Settle order.