Klein v. Rabhor Co.

252 A.D. 781, 299 N.Y.S. 149, 1937 N.Y. App. Div. LEXIS 6270

Opinion

Order granting plaintiff’s motion to adjudge the defendant in contempt for the failure to produce invoices issued by it during the month of December, 1936, and a certain order book, as directed by the order of May 7, 1937, directing that the answer be struck out, awarding judgment to the plaintiff as upon a default in pleading, and fining the defendant $250 and in addition the sum of $100 as compensation to plaintiff’s attorney for his services in the proceeding, reversed on the law and the facts, without costs, and the matter remitted to Special Term for disposition. Appeal from order denying motion for reargument dismissed. The record discloses, and Special Term was satisfied, that the defendant has no order book, and that the records for the months of December, 1936, and January, 1937, were lost, but that the information contained therein is available to plaintiff from the ledger cards. The defendant also says that the plaintiff was the “ high ” salesman for the years 1935 and 1936 and, therefore, proof as to that issue is not needed. Special Term would have granted proper relief, but was powerless in view of the fact that an appeal from the order of August 27, 1937, was pending. Hagarty, Carswell, Johnston, Adel and Close, JJ., concur.