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

Appellate Division of the Supreme Court of the State of New York·Decided March 10, 1926·Published·Cited by 2 cases

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] the 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] the 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.

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).

Pincite

216 A.D. 110 (Tichnor Bros. v. Bickle) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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