Armstrong v. Noyes

238 A.D. 849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1933
• Status: Published

Opinion

Order denying motion to vacate plaintiff’s notice of examination of defendant Charles F. Noyes before trial reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion the plaintiff is not entitled to examine said defendant upon all of the allegations of the complaint. The complaint contains allegations which are not “ material and necessary ” to the prosecution of the action.

* The notice of examination should set forth, in accordance with the provisions of section 290 of the Civil Practice Act, “ The matters upon which such person or persons are to be examined.” This reversal is without prejudice to the service of another notice. Lazansky, P. J., Hagarty, Seudder and Tompkins, JJ., concur; Davis, J., dissents, on the following ground: The form of the subjects of the examination may be somewhat objectionable but they could readily be modified so that the plaintiff could proceed with the examination, to which he is evidently entitled, without the necessity of giving a new notice.

See Civ. Prac. Act, § 288, as amd. by Laws of 1926, chap. 371.— [Ref.