Ainsworth v. Cooper Underwear Co.

227 A.D. 837

Opinion

Per Curiam.

The examination sought is material and necessary to enable defendant to establish the defense pleaded. (Civ. Prac. Act, § 288.) The defense, if established, is a valid one under section 3 of the Clayton Act (38 U. S. Stat. 731).

* We reverse the order vacating the notice of examination. However, we modify that notice by striking out paragraphs numbered 5 and 6. The portion of the order appealed from which denies defendant’s countermotion is reversed, and the motion is granted except that the portion of the new order corresponding with paragraph (1) of defendant’s notice of countermotion should read as follows: “ that the scope of the plaintiff’s examination be extended so that all information be given by the plaintiff from a date which shall be six months before the date of the first lease entered into between plaintiff and defendant containing the following provision, to wit: ‘ we will not manufacture or use any other machines or method for random dyeing yarns during the life of this lease except those now in use in our mills.’ ” We grant defendant’s countermotion for the production of books and papers for the reason that such production for the purposes indicated in the notice of countermotion will be “ pursuant to an order.” (Civ. Prac. Act, § 296.) We grant no costs of this appeal. All concur. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ. Order modified in accordance with the opinion and as modified affirmed, without costs of this appeal to either party.

Now U. S. Code, tit. 15, § 14.— [Rep.