Livingston v. Zimmerman

5 A.D.2d 812, 170 N.Y.S.2d 103, 1958 N.Y. App. Div. LEXIS 7041

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1958
• Status: Published

Opinion

In view of the affirmative defense in which it is alleged that defendant received the letters of credit “without any knowledge or notice” of infirmity, an examination as to the items disallowed by the Special Term would seem proper. The allegations in the opposing affidavit clearly indicate the necessity for an examination on these items in order to establish whether defendant Stratford participated in, or was aware of the alleged fraudulent acts. The examination should not be limited as directed by the court below to the transactions in suit but should permit inquiry into all transactions involved between Stratford, Magnus and Ratac, subsequent to September, 1956. Order unanimously modified on the law and in the exercise of discretion to the extent of denying the motion to vacate as to Item I (5 through 14, inclusive) and eliminating the provision in the order limiting the examination to the transactions in suit, and, as so modified, the order is affirmed, without costs. Settle order.

Concur — Breitel, J. P., Rabin, Frank, McNally and Stevens, JJ.