Winston v. Bendix Home Appliances, Inc.

281 A.D. 1047, 121 N.Y.S.2d 594, 1953 N.Y. App. Div. LEXIS 4286

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1953
• Status: Published

Opinion

by plaintiff wife to recover damages for personal injuries and by her husband for loss of services and for medical expenses. The injuries were alleged to have been suffered in the operation of an automatic ironing device manufactured by defendant Bendix Home Appliances, Inc., a nonresident corporation situate in Indiana, and distributed by defendant Bruno-New York, Inc., a domestic corporation. By an order dated February 26, 1953, Special Term granted defendant dis- tributor’s motion to examine the defendant manufacturer before trial and directed that the examination be held in Nassau County on March 18, 1953. By an order dated March 19, 1953, defendant manufacturer’s motion for reargument was denied and the court again granted the motion for the examina- tion and directed that it be held in Nassau County on April 6, 1953. Defendant manufacturer appeals from both orders. Order dated March 19, 1953, insofar as it again grants the motion for the examination and directs that it be held in Nassau County on April 6, 1953, reversed, with $10 costs and disbursements, and motion for the examination denied, without costs, and without prejudice 2 3 4 1 to an application for examination by written interrogatories or an open commission. In view of the relative weights of the necessity for the examination, as against the expense and inconvenience of attending the examination, the application should have been denied without prejudice. Appeal dismissed from the order dated March 19, 1953, insofar as said order denied the motion for reargument. No appeal lies from an order denying a motion for reargument. Appeal from the order dated February 26, 1953, dismissed, without costs. Adel, MaeCrate and Schmidt, JJ., concur; Nolan, P. J., and Carswell, J., concur in result.