Macklis v. Academy of Saint Joseph

258 A.D. 903, 16 N.Y.S.2d 194, 1939 N.Y. App. Div. LEXIS 7513

Opinion

Action for legal services alleged to have been rendered to the respondents in relation to the prosecution of certain actions on their behalf. Order dated May 22, 1939, denying plaintiff’s motion to examine respondents before trial reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, without costs, the examination to proceed on five days’ notice. The proof sought to be adduced is in support of allegations of the complaint which have been put in issue by the respondents. Under the settled rule plaintiff is entitled to such an examination. There is nothing indicative of bad faith on the part of the plaintiff. A conclusion of bad faith cannot be predicated upon respondents’ belief that plaintiff’s claim is ill-founded. Whether it is or not is a matter for determination on the trial of this action. The appeal from order dated June 7, 1939, is dismissed, without costs. Lazansky, P. J., Hagarty, Carswell, Taylor and Close, JJ., concur.