New Rochelle Precision Grinding Corp. v. Marino

9 A.D.2d 685, 191 N.Y.S.2d 561, 1959 N.Y. App. Div. LEXIS 6730

Opinion

Appeal from an order granting respondent’s motion to take the deposition of appellants, as adverse parties, to obtain information to enable respondent to draw a complaint and for other relief (Rules Civ. Prac., rule 122). Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. The complaint is to be served, if respondent be so advised, within 10 days after the entry of the order hereon. The facts stated in support of the motion do not fairly indicate that respondent has any cause of action against either appellant, and an examination may not be allowed to ascertain whether such facts exist. (Beihirch v. Loebs, 243 App. Div. 859; East V. Endicott Forging <& Mfg. Co., 280 App. Div. 651; Stewart V. Socony Vacuum Oil Co., 3 A D 2d 582.) Moreover, if it be assumed, as respondent contends, that the facts stated are sufficient as against the individual appellant, it would also appear that respondent possesses sufficient information to frame a complaint without the examination which is sought. (Beihirch v. Loebs, supra) JRosenhranz v. Title Guar. & Trust Co., 260 App. Div. 1057.) Nolan, P. J., Wenzel, Beldock, Ughetta and Hallinan, JJ., concur.