Selkowitz v. Selkowitz

195 Misc. 979, 80 N.Y.S.2d 688, 1948 N.Y. Misc. LEXIS 2640

• Court: New York Supreme Court
• Decided: April 27, 1948
• Status: Published

Opinion

Beldock, J.

In this separation action there was a dismissal of the complaint (71 N. Y. S. 2d 192) which determination was reversed by the Appellate Division. On the review in the Appellate Division plaintiff was granted a separation and the case was remitted to Special Term for determination on the questions of alimony and incidental relief (272 App. Div. 1071). Judgment was thereupon entered as directed by the Appellate Division.

Plaintiff now moves to examine defendant before trial as to his financial means. Defendant objects generally to the examination on the ground that the trial of the action having already been had, and judgment having been entered, he cannot at this time be ‘ ‘ examined before trial ’ ’. In addition he makes specific objections to items 1, 2, 14 and 15.

The general objection is untenable. Although judgment was entered granting a separation, the rights of the parties with respect to alimony and maintenance were not determined. It was for this reason that the matter was referred to Special Term. Thus the “ trial ” of this issue still remains undetermined. Plaintiff having established her right to a separation (Selkowitz v. Selkowitz, 272 App. Div. 1071, supra) such an examination is proper (Van Valkenburgh v. Van Valkenburgh, 149 App. Div. 482; Scheffer v. Scheffer, 183 Misc. 344).

With respect to the specific items objected to the motion is denied as to number 15. The information sought therein may be obtained by an examination on the other items. Motion granted as to all other items. Defendant is to produce the books, records, etc., as indicated in the moving papers. Settle order on notice.