Barnello v. Paul-Jeffrey Co.

283 A.D. 996, 130 N.Y.S.2d 384, 1954 N.Y. App. Div. LEXIS 6029

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 5, 1954
• Status: Published

Opinion

Order of Onondaga County Court and order of Syracuse Municipal Court reversed, with $10 costs and disbursements, and motion denied, without costs. Memorandum: In this action for breach of warranty of merchantability and fitness for resale of goods sold to the plaintiff by the defendant, the defendant served notice to examine the plaintiff, as an adverse party, before trial. Upon motion of the plaintiff, in the Municipal Court of the City of Syracuse, the notice of examination was vacated and upon appeal, the County Court of Onondaga County affirmed the Municipal Court order. The Municipal Court of the City of Syracuse is a court of record and the defendant is entitled to the examination pursuant to section 288 of the Civil Practice Act. It is immaterial as to which of the parties has the burden of proof and the fact that the plaintiff has furnished a bill of particulars does not preclude his examination as an adverse party. The present practice is well established and recognized. Since there was no motion to limit the scope of the examination, we do not pass upon that point. The order vacating the notice of examination should be reversed. All concur. (Appeal from an order of Onondaga County Court, affirming an order of Syracuse Municipal Court, vacating defendant’s notice for examination before trial.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.