Wiener v. Regent Brand Clothes, Inc.

204 Misc. 231, 122 N.Y.S.2d 231, 1953 N.Y. Misc. LEXIS 1835

Opinion

Per Curiam.

Examinations before trial in summary proceedings are contrary to the spirit and intent of the Legislature in providing the summary remedy (Dubowsky v. Goldsmith. 202 App. Div. 818).

The court had no jurisdiction to stay the summary proceedings before final order (Civ. Prac. Act, § 1446).

The order should be reversed, with $10 costs, motion denied and stay vacated.

Schreiber and Hecht, JJ., concur in Per Curiam memorandum; Hofstadter, J., concurs in result solely on ground that in the particular circumstances of this case it was an abuse of discretion to grant order for examination; I do not regard the Dubowsky case as persuasive, nor, of course, is it controlling •— and in this view, in a proper case, the court would have jurisdiction to order an examination and, pending its completion, order a stay.

Order reversed, etc.