310 Riverside Boulevard Corp. v. Weiss

245 A.D. 738

Opinion

In an action to reforeclose a mortgage where certain defenses and counterclaims were interposed, order in so far as it fails to provide for an examination of the plaintiff and one Goodman before trial as to items “ d,” “ n ” and “ o,” enumerated in the order to show cause, and in so far as it limits the production of books and papers to such only as may be necessary to refresh recollection, reversed on the law and the facts, with ten dollars costs and disbursements, and motion in these respects granted, with ten dollars costs; the examination to proceed on five days’ notice. In our opinion the items in question all related to matters which must be proved by the appellant in order to establish her defenses and counterclaims and should have been allowed, and the use of the books and papers directed to be produced should not have been limited as prescribed in the order. (Fey v. Wisser, 206 App. Div. 520; Zeltner v. Fidelity & Deposit Co. of Maryland, 220 id. 21; Wertheim v. Grombecher, 229 id. 16.) Appeal from order denying motion to resettle said order dismissed. Lazansky, P. J., Young, Carswell, Tompkins and Johnston, JJ., concur.