Kew Homestead Corp. v. Underwriters Trust Co.

259 A.D. 1030, 1940 N.Y. App. Div. LEXIS 7845

Opinion

Motion referred to the court that rendered the decision on the appeal. Present — Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ. Motion granted to the extent of amending the decision of this court handed down April 15, 1940 [ante, p. 840], to read as follows: Action in conversion. Order denying plaintiff’s motion, under section 325 of the Civil Practice Act, to punish the defendant for failing to obey the order of discovery and inspection, dated November 24, 1939, reversed on the law and the facts, with ten dollars costs and disbursements, the motion granted, with ten dollars costs, and defendant is debarred from denying plaintiff’s valuation of the personal property as stated in the complaint. If defendant permits the inspection on the conditions hereinafter provided, it may apply at Special Term to be relieved of the said debarment. The plaintiff shall be permitted to conduct the inspection on the premises of the Homestead Hotel, Kew Gardens, Long Island, N. Y., beginning on June 24, 1940, and to be continued from time to time thereafter until completed, between the hours of 1 and 5 p. m. on each day, with no more than the following number of persons representing plaintiff present at any one time: one officer of the plaintiff corporation, two appraisers, one clerk, and the plaintiff’s attorney or his representative. The defendant has the right to enter the premises for the purposes of exhibition or examination; and it is within its power to obey the order. Disobedience of the order is not excused because the tenant objects to the inspection. Furthermore, the tenant was placed in the position under which it assumes to refuse inspection and examination by the action of the defendant after knowledge by the defendant of the plaintiff’s claim. The order is resettled accordingly. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.