Misc.] Supreme Court, December, 1917. of the trench itself. (See Schmit v. Gillen, 41 App. Div. 302.) In the present case, however, the plaintiff was engaged in the removal of material the removal of which was just as essential to the construction of the trench as was the preliminary blasting." Henry v. Hudson & Manhattan R. R. Co., 201 N. Y. 140; Caciatore v. Transit Const. Co., 147 App. Div. 676, are to the same effect. This disposes of any question there may have been in such cases. The cases cited by plaintiff (Mahoney v. Cayuga Lake Cement Co., 208 N. Y. 164; Mautsewich v. United States Gypsum Co., 217 id. 593; Simone v. Kirk, 173 id. 7; Martinkovics v. Lehigh Coal & Navigation Co., 90 Misc. Rep. 185; Andriuszis v. Philadelphia & Read. Coal & Iron Co., 156 N. Y. Supp. 260; McCall, Admx. v. Witherbee, 21 Wkly. Dig. 530; affd., 103 N. Y. 654) are not controlling. They are all cases where the safe place to work rule applies or where failure to instruct an ignorant man was the negligence alleged. Motion granted. GEORGE L. COURTNEY, Plaintiff, v. HELEN ALICIA MCARDLE and UNION TRUST COMPANY of Albany, N. Y., as Executors of the Last Will and Testament of PATRICK J. MCARDLE, Deceased, Defendants. (Supreme Court, Albany Special Term, December, 1917.) Depositions-motion to suppress, when granted-examination of expert accountant — actions — partnership — witness — accounting - evidence. Upon motion to suppress the deposition of an expert accountant as a witness for plaintiff in an action to establish a copartnership, which has been decreed, and for an accounting, counsel for defendants, after questioning the witness, without the aid of an expert, as to the general plan and scope of his work as Supreme Court, December, 1917. [Vol. 102. accountant, stated that he had cross-examined the witness as well as he could and to the full extent of his ability and objected to any further postponement of the hearing except for the purpose of reducing it to writing so that the witness could sign it and insisted that the examination be closed then. The hearing was adjourned against the objection of counsel for several days at which time the witness signed the testimony, which the referee certified, and on the same day the witness, who was a British subject, went to Europe, where he joined the colors and was killed in action. Held, on a consideration of all the facts and circumstances, justice required a determination that the deprivation of a further, adequate and proper cross-examination of the witness was not because of the fault or waiver or negligence on the part of defendants or their attorneys and that their motion to suppress the deposition of the witness should be granted. MOTION to suppress the deposition of a witness sworn for the plaintiff. Edgar T. Brackett (William E. Bennett, of counsel), for plaintiff. DuBois & McDermott (Pierre E. DuBois, of counsel), for defendants. RUDD, J. The defendants move to suppress the deposition of William S. McKay, a witness sworn for the plaintiff, taken pursuant to an order granted by the Saratoga county judge before a referee. The order for the examination of the witness McKay was served on defendants' attorneys September 24, 1914. The date for the examination was fixed for October 1, 1914. An order issued on the 26th of September, 1914, requiring plaintiff to show cause at a Special Term to be held at Kingston on the 3d day of October, 1914, why the order for the examination of witness McKay on behalf of the plaintiff should not be set aside upon several grounds named in the motion papers, one of Misc.] Supreme Court, December, 1917. which was that the defendants would be practically deprived of their right to cross-examine witness McKay, in that sufficient and reasonable time was not given to defendants in which to prepare for the necessary cross-examination. At the Special Term Mr. Justice Hasbrouck denied defendants' motion to vacate the order for the examination of witness McKay, but imposed certain conditions as follows: 1. Plaintiff may proceed with the examination on Monday, October 5, 1914. (The second day after the making of the order by Justice Hasbrouck.). 2. That if the said witness McKay shall not depart the country or join the English colors in the present war, or if, having thus departed, he does not return to this jurisdiction for cross-examination upon defendants' demand made at or before the time when the testimony on both sides is otherwise closed, that then, and in either event, the defendant may, and he is hereby granted leave to, move this court for an order to suppress such examination and to strike the same from the record of the case, upon the ground that he has been injured and prejudiced with respect to his right of cross-examination by said order and proceedings. But it is not intended hereby to decide whether the defendant is or will be injured or prejudiced by such proceedings in or respecting his said right or otherwise, that question to be determined upon the merits upon the defendant's said motion, if one be made. That motion is made and now must be determined, and as the Special Term stated it must be determined upon the merits, having in mind and in view whether or not upon all the conditions existing the defendants have been injured or prejudiced in respect to their right to cross-examine the witness McKay. Supreme Court, December, 1917. [Vol. 102. We are not here to review the order of the Special Term, Mr. Justice Hasbrouck. We are, however, to determine, as in said order suggested, whether the defendants are or will be injured and prejudiced in respect of their not having been afforded a proper, suitable and adequate opportunity for the examination of the witness McKay. The history of this litigation is interesting. The action, commenced in 1895 to establish a copartnership, which has been decreed, and for an accounting between those found to be the partners, has for over twenty-two years been dragging its slow length through the courts. From a somewhat intimate knowledge of the methods we are free to say that the length of years which have passed since the action was brought is not altogether the result of the courts' delay, but it is to be attributed rather to a marked deliberate effort on the part of all who have been interested in and for those immediately concerned. We are in this motion faced with a situation which seems clearly to be the result of the same methods heretofore prevailing. The cause was tried for the first time seven years after commencement. Decision was rendered in December, 1903, by Mr. Justice Cochrane and interlocutory judgment thereon was entered thirteen months thereafter. Six years elapsed before the appeal from such judgment was brought on before the Appellate Division, which resulted in an affirmance. The judgment of affirmance was entered in 1910 and granted an accounting. No real steps were taken in the matter of the accounting until four more years had passed, which brings us down to the summer of 1914, at which time an accountant named McKay began the examination for the plaintiff of the books and papers of the copartnership, which had for several years been Misc.] Supreme Court, December, 1917. deposited in the office of the clerk of Albany county for the purpose of examination. The examination by the accountant, McKay, with two men assisting him occupied four months during the summer of 1914 and in the fall of that year it was proposed by the plaintiff to take the testimony of accountant McKay in the form of a deposition. An order was made directing the examination to proceed October 1, 1914. It seems that on the 23d day of August, 1914, McKay, the witness, who was a British subject, was notified of his call to the colors, that he immediately went to Montreal and upon his return notified the attorneys for plaintiff, on the thirty-first of August, that he would be obliged to leave the United States. Three weeks thereafter passed before the plaintiff took any steps to have the examination of McKay taken and his testimony perpetuated. As before stated, his examination, fixed for the first of October, was finally commenced under the order of Justice Hasbrouck on Monday, the 5th of October, 1914. The direct examination of the witness McKay, in the oral testimony by him given, covered fifty-three pages of testimony and there were introduced in evidence exhibits and schedules in great number, with a mass of detail of figures, facts and conclusions, the result of an examination of books by an expert accountant, aided by two assistants, the value of whose services are fixed at several thousand dollars, and concerning which examination witness McKay testified that he had been engaged upon the books since May last, and that in tabulating the result of the examination his work had been extremely difficult because such books were not scientifically kept and several were missing. Concerning the character of the work done and the |