Di Donna v. First National Stores, Inc.

33 Misc. 2d 597, 232 N.Y.S.2d 263, 1962 N.Y. Misc. LEXIS 3541

Opinion

Plaintiff alleges that she was made ill as a result of the presence of a worm in a can of Green Giant Corn which she allegedly purchased from the defendant, and sues the defendant retailer in breach of warranty. Defendant moves for a commission to examine upon written interrogatories an employee of the packer of the can in question with regard to the packing procedures and safeguards used. Plaintiff opposes the motion on the ground that such testimony is irrelevant and immaterial in a breach of warranty action against the retailer.

John Daly, J.

Defendant’s motion to have a commission to examine under oath Mr. C. J. Tempas, vice-president in charge of production of Green Giant Company, Le Sueur, Minnesota, as a witness on behalf of the defendant, is granted in all respects.

I agree with the attorney for the defendant that the issue in this case is whether the can contained a worm or not. That is the very reason why the testimony of Mr. Tempas is necessary for the defendant. Otherwise the defendant would have no way of rebutting the testimony of the plaintiff.