Soehner v. Aplo Clothing Co.

Appellate Division of the Supreme Court of New York

Soehner v. Aplo Clothing Co.

251 A.D. 793, 296 N.Y.S. 701, 1937 N.Y. App. Div. LEXIS 7561

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

DecidedMay 26, 1937

StatusPublished

Cited by3 cases

This text of 251 A.D. 793 (Soehner v. Aplo Clothing 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.

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Soehner v. Aplo Clothing Co., 251 A.D. 793, 296 N.Y.S. 701, 1937 N.Y. App. Div. LEXIS 7561 (N.Y. Ct. App. 1937).

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Opinion

Order modified and as modified affirmed, without costs. Memorandum: The production of books, papers and records cannot be compelled by notice. It must be done by order (Civ. Prae. Act, § 296), and the order herein was only one passing upon the validity of the notice, and vacating parts thereof. The subjects of the examination set forth in paragraphs 5 and 6 of the notice might seem to relate to matters of defense but, in his first cause of action, as alleged in paragraph 3 of the complaint, plaintiff conditions his right to recover upon his work being “ all right ” and, therefore, has assumed the burden of proof as to the quality of his work. All concur. (The order vacates a part of a notice of examination before trial and directs the examination of an officer of defendant corporation in an action for breach of contract.) Present — Sears, P. J., Edgcomb, Crosby, Cunningham and Taylor, JJ.

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Order modified and as modified affirmed, without costs. Memorandum: The production of books, papers and records cannot be compelled by notice. It must be done by order (Civ. Prae. Act, § 296), and the order herein was only one passing upon the validity of the notice, and vacating parts thereof. The subjects of the examination set forth in paragraphs 5 and 6 of the notice might seem to relate to matters of defense but, in his first cause of action, as alleged in paragraph 3 of the complaint, plaintiff conditions his right to recover upon his work being “ all right ” and, therefore, has assumed the burden of proof as to the quality of his work. All concur. (The order vacates a part of a notice of examination before trial and directs the examination of an officer of defendant corporation in an action for breach of contract.) Present — Sears, P. J., Edgcomb, Crosby, Cunningham and Taylor, JJ.

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Bluebook (online)

251 A.D. 793, 296 N.Y.S. 701, 1937 N.Y. App. Div. LEXIS 7561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soehner-v-aplo-clothing-co-nyappdiv-1937.

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