De Brunoff v. McClure-Tissot Co.

82 N.Y.S. 38, 83 A.D. 640

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1903
• Status: Published

Opinion

INGRAHAM, J.

I think the affidavits sufficient to justify an order for the examination of the officers of the defendant corporations as to the authority of Brady to indorse the instruments set out in the complaint on behalf of the S. S. McClure Company; as to the agreement for an extension of time, for the payment of the amount to be paid by the instrument sued on; as to notice to the indorser of the presentation of these instruments to the acceptor, and demand for payment thereof; as to the refusal of the acceptor to pay, and as to the knowledge of the defendant of the invalidity of' the copyrights referred to in the answer before the execution of the instrument sought to be enforced. I think, however, that the order is too broad; requiring, as it does, the officers of the corporations to be examined to produce all the books of the defendants upon such examination. The only books or documents that could be used upon such examination would be the corporate minute books and by-laws of the defendant the S. S. McClure Company, and the books of the defendant corporations relating to the contracts which are annexed to, and made a part of, the complaint. The order should therefore be modified by requiring the officers of the defendants named to appear for examination, the examination to be restricted to the subjects above indicated, and to produce at the examination the minute books of the S. S. McClure Company, and all books and records in possession of the defendants relating to, or containing any reference to, the instruments in suit, or the contracts annexed to the complaint; and, as thus modified, the order appealed from should be affirmed, without costs. All concur.