Schwartz v. J. L. Taylor & Co.

Appellate Division of the Supreme Court of New York

Schwartz v. J. L. Taylor & Co.

225 A.D. 899

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 15, 1929

StatusPublished

Cited by4 cases

This text of 225 A.D. 899 (Schwartz v. J. L. Taylor & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwartz v. J. L. Taylor & Co., 225 A.D. 899 (N.Y. Ct. App. 1929).

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Opinion

Order granting plaintiff’s motion to vacate notice of examination before trial reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The mere lapse of time between the commencement of the action and the notice of examination of a party before trial, in the absence of any other showing, is not sufficient reason for vacating the notice on the ground of laches. (Shonts v. Thomas, 116 App. Div. 854; Donaldson v. Brooklyn Heights Railroad Co., 119 id. 513; Tisdale Lumber Co. v. Droge, 147 id. 55; Kornbluth v. Isaacs, 149 id. 108.) The burden is upon defendants to prove affirmatively that plaintiff had or might have obtained similar employment and they are entitled to examine the plaintiff upon that issue. (Howard v. Daly, 61 N. Y. 362; Allen v. Cien Creamery Co., 101 App. Div. 306; Abramson v. Davis Gowns, Inc., 128 Misc. 454.) Lazansky, P. J., Hagarty, Seeger, Carswell and Scudder, JJ., concur. Settle order on notice; date of examination to be fixed therein.

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Order granting plaintiff’s motion to vacate notice of examination before trial reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The mere lapse of time between the commencement of the action and the notice of examination of a party before trial, in the absence of any other showing, is not sufficient reason for vacating the notice on the ground of laches. (Shonts v. Thomas, 116 App. Div. 854; Donaldson v. Brooklyn Heights Railroad Co., 119 id. 513; Tisdale Lumber Co. v. Droge, 147 id. 55; Kornbluth v. Isaacs, 149 id. 108.) The burden is upon defendants to prove affirmatively that plaintiff had or might have obtained similar employment and they are entitled to examine the plaintiff upon that issue. (Howard v. Daly, 61 N. Y. 362; Allen v. Cien Creamery Co., 101 App. Div. 306; Abramson v. Davis Gowns, Inc., 128 Misc. 454.) Lazansky, P. J., Hagarty, Seeger, Carswell and Scudder, JJ., concur. Settle order on notice; date of examination to be fixed therein.

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225 A.D. 899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-j-l-taylor-co-nyappdiv-1929.

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