Tichnor Bros. v. Bickle

Appellate Division of the Supreme Court of New York

Tichnor Bros. v. Bickle

216 A.D. 110, 214 N.Y.S. 547, 1926 N.Y. App. Div. LEXIS 9167

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

DecidedMarch 10, 1926

StatusPublished

Cited by2 cases

This text of 216 A.D. 110 (Tichnor Bros. v. Bickle) 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

Tichnor Bros. v. Bickle, 216 A.D. 110, 214 N.Y.S. 547, 1926 N.Y. App. Div. LEXIS 9167 (N.Y. Ct. App. 1926).

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Opinion

Per Curiam.

Defendant’s answer does not admit the making of the contract alleged in the complaint. The matters specified in paragraphs 1 to 3 (inclusive) of the notice for examination, are not shown to be “ material and necessary in' the prosecution * * * of the action ” by plaintiff. (Civ. Prac. Act, § 288.) As to paragraphs 4 to 6 (inclusive), the contrary is the case. To sustain [111]*111the notice as to the matters specified in paragraphs 7 to 10 (inclusive) thereof would merely enable the plaintiff to examine or cross-examine defendant as to his defenses and counterclaims. We find nothing in this record to justify our departing from the general rule forbidding such examination. (Sands v. Comerford, 211 App. Div. 406; Lattimer v. Sun-Herald Corp., 208 id. 503.)

The order appealed from should be modified so as to provide for striking from the notice for examination paragraphs 1, 2, 3, 7, 8, 9 and 10 only, and as thus modified affirmed, without costs. The notice, as amended, to specify time and place of examination and to name referee.

Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order modified in accordance with opinion and as modified affirmed, without costs of this appeal to either party.

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Per Curiam.

Defendant’s answer does not admit the making of the contract alleged in the complaint. The matters specified in paragraphs 1 to 3 (inclusive) of the notice for examination, are not shown to be “ material and necessary in' the prosecution * * * of the action ” by plaintiff. (Civ. Prac. Act, § 288.) As to paragraphs 4 to 6 (inclusive), the contrary is the case. To sustain [111]*111the notice as to the matters specified in paragraphs 7 to 10 (inclusive) thereof would merely enable the plaintiff to examine or cross-examine defendant as to his defenses and counterclaims. We find nothing in this record to justify our departing from the general rule forbidding such examination. (Sands v. Comerford, 211 App. Div. 406; Lattimer v. Sun-Herald Corp., 208 id. 503.)

The order appealed from should be modified so as to provide for striking from the notice for examination paragraphs 1, 2, 3, 7, 8, 9 and 10 only, and as thus modified affirmed, without costs. The notice, as amended, to specify time and place of examination and to name referee.

Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order modified in accordance with opinion and as modified affirmed, without costs of this appeal to either party.

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Bluebook (online)

216 A.D. 110, 214 N.Y.S. 547, 1926 N.Y. App. Div. LEXIS 9167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tichnor-bros-v-bickle-nyappdiv-1926.

Opinion

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