Moyle v. Rutherford

263 A.D. 972, 33 N.Y.S.2d 193

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 1942
• Status: Published

Opinion

Defendants appeal from two orders, (1) denying

defendants’ motion for leave to file a second amended answer pleading the Statute of Limitations and for summary judgment dismissing the first cause of action; and (2) granting in part plaintiff’s motion for examination before trial. Plaintiff cross-appeals from the second order. Order No. 1 affirmed, nunc pro tunc as of January 5, 1942, the date of submission of the appeal, with ten dollars costs and disbursements. Order No. 2 modified on the law and the facts as follows: By inserting a provision allowing plaintiff in addition to examine as to items 2, 4 and-5; by striking out the second ordering paragraph; and by inserting in place thereof a provision that the examination of one of the individual defendants, whose name is to be inserted in the order upon the settlement thereof, and the examination of such officer of both corporations as may be inserted in the order upon the settlement thereof, be held at Special Term, Part II, of the Supreme Court, Kings County, at the Municipal Building, borough of Brooklyn, city and State of New York, on five days’ notice to the attorneys for defendants, without prejudice to an application for the examination of other officers or individual defendants in the event that those to be examined as provided by the order hereon, are unable to furnish the required information. As so modified, the order is affirmed nunc pro tunc as of January 5, 1942, the date of submission of the appeal, with ten dollars costs and disbursements to plaintiff. Appeals from opinions dismissed, without costs. Orders to be entered hereon will be entered nunc pro tunc as of January 5, 1942. No opinion. Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur. Settle orders on notice.