Green Point Savings Bank v. Central Gardens Unit No. 1

280 A.D. 987, 116 N.Y.S.2d 554, 1952 N.Y. App. Div. LEXIS 4505

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1952
• Status: Published

Opinion

In an action to recover damages for alleged breach of contract, defendant, a corporation, appeals from an order which denies its motion to vacate a notice of examination before trial, served by plaintiff, and directs that defendant, by its president and its agent, appear for such examination. Order modified on the law by deleting from the last ordering paragraph thereof the words “and Abraham Traub, its agent”, and as so modified, affirmed, without costs. The examination directed shall proceed on five days’ notice. It was improper to direct the examination of appellant corporation by one not alleged to be its agent at the time said notice was served or when said order was made. (Cohen v. Guardian Life Ins. Co., 243 App. Div. 776; McGowan V. Eastman, 271 N. Y. 195; Schwartz V. Brooklyn & Queens Tr. Corp., 260 App. Div. 947.) Nolan, P. J., Carswell, Johnston, Wenzel and MaeCrate, JJ., concur.