Shore Bridge Corp. v. A. J. Paretta Contracting Co.

278 A.D. 627, 102 N.Y.S.2d 155, 1951 N.Y. App. Div. LEXIS 4126

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1951
• Status: Published

Opinion

This is an appeal by plaintiff from an order of the Albany County Special Term of Supreme Court granting defendant’s motion to dismiss plaintiff’s amended complaint, and denying plaintiff’s cross motion for an examination of defendant for the purpose of framing a complaint. Plaintiff instituted this action to recover damages for breach of contract. In June, 1942, defendant entered into a contract with the United States Government for the construction of a defense housing project at Massena, New York. Subsequent to the making of this contract defendant entered into a contract with plaintiff whereby plaintiff agreed to perform as subcontractor certain work which defendant was to perform, in the excavation and grading for streets, roads and sidewalks. The complaint alleges that plaintiff entered upon the performance of its contract with defendant and rendered services thereunder between July 16, 1942 and August 21, 1943, and it contains no allegations as to the contents of the contract. It is alleged that on the latter date defendant wrongfully and without cause terminated plaintiff’s contract and also seized certain machinery and equipment belonging to plaintiff. Defendant challenged the sufficiency of the amended complaint contending that the terms and provisions of the subcontract were not set forth in detail and that incorporation by reference under the circumstances was not proper. Plaintiff made a cross motion demanding an examination of defendant before trial. Plaintiff’s cross notice of motion was not very definite as to what information plaintiff desired. However, in its argument before this court, and in its brief, plaintiff indicates its desire to examine for the purpose of preparing its complaint. The Special Term properly granted the motion to dismiss the amended complaint, and that portion of the order should be and hereby is affirmed, without costs. Insofar as the order denies plaintiff’s cross motion to examine defendant for the purpose of framing a complaint, that portion of the order should be and hereby is reversed on the law and facts and the motion granted, without costs. Under rule 122 of the Rules of Civil Practice, plaintiff having shown it has no knowledge of the contents of the contract between defendant and the United States Government and the subcontract between defendant and plaintiff, and the defendant has in its possession such papers, plaintiff is entitled to examine defendant for that purpose. Defendant is directed to appear by A. J. Paretta, its president, before the Albany County Special Term of the Supreme Court, Part I, appointed to be held at the court house in the city of Albany, New York, on the 29th day of January, 1951, at the opening of court on that day and to submit to examination by plaintiff as to the contents of the contracts between it and the United States Government and between itself and the plaintiff, and to produce at that hearing such contracts or copies thereof and to permit plaintiff to inspect the same and to make copies thereof. Permission is hereby granted to plaintiff to serve an amended complaint within twenty days at the close of the examination herein directed. Poster, P. J., Heffernan, Brewster, Bergan and Coon, JJ., concur.