Registered Country Homebuilders, Inc. v. Stebbins

16 A.D.2d 835, 229 N.Y.S.2d 301, 1962 N.Y. App. Div. LEXIS 9473

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1962
• Status: Published

Opinion

In an action to recover damages for breach of contract, defendant appeals, as limited by his brief, from so much of a resettled order of the Supreme Court, Westchester County, dated February 20, 1961, and entered in Rockland County on February 28, 1961, as directed him to appear for examination before trial by the plaintiff at a specified time and place. Resettled order, insofar as appealed from, affirmed, with $10 costs and disbursements. The examination of the defendant shall proceed on 10 days’ written notice or on a date to be mutually fixed by the parties. Defendant contends that the direction to him to appear for examination should have been conditioned upon the simultaneous appearance for examination of the plaintiff’s president. Defendant made no cross motion seeking the imposition of such a condition. Instead, he attempted to impose the condition by including it in a counter order he presented after the court had granted plaintiff’s motion. This indirect manner of attempting to obtain other relief is disapproved; it is not the orderly manner prescribed for seeking relief different from or in addition to that sought upon the original motion (see Civ. Prac. Act, § 117; Bernard v. Chase Nat. Bank, 233 App. Div. 384). Defendant’s procedure would deprive the court of the opportunity to hear argument in opposition to the additional or different relief at the time it was considering the motion. In addition, on all the facts set forth we find neither abuse of discretion by the Special Term nor prejudice to the rights of the defendant. Beldock, P. J., Kleinfeld, Christ, Hill and Rabin, JJ,, concur.