Majority
Order entered December 8, 1965, granting plaintiffs’ motion to conduct an examination before trial of a witness, unanimously reversed on the law and the facts, and in the exercise of discretion, and the motion denied, with $30 costs and disbursements to defendant-appellant. The application to examine the witness was made almost 16 months after plaintiffs had filed a statement of readiness. Apart from any question as to whether plaintiffs had demonstrated special, unusual or extraordinary circumstances to permit a departure from our statement of readiness rule (see Jacobs v. Peress, 23 A D 2d 483 ), the record demonstrates inexcusable laches in making the application. Plaintiffs knew of the existence of the nonresident witness before they filed their statement of readiness and before they drafted their bill of particulars. Yet, no steps were taken to elicit any testimony from the witness. Having failed to use reasonable diligence in asserting their rights, plaintiffs forfeited any right to appeal on equitable principles for relief from the statement of readiness rule.
Concur — Rabin, J. P., Yalente, McNally, Stevens and Eager, JJ.