Young v. Ebbott

Appellate Division of the Supreme Court of New York

Young v. Ebbott

284 A.D. 72, 130 N.Y.S.2d 340, 1954 N.Y. App. Div. LEXIS 3345

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

DecidedMay 14, 1954

StatusPublished

This text of 284 A.D. 72 (Young v. Ebbott) 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

Young v. Ebbott, 284 A.D. 72, 130 N.Y.S.2d 340, 1954 N.Y. App. Div. LEXIS 3345 (N.Y. Ct. App. 1954).

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Opinions

Per Curiam.

The plaintiffs started this lawsuit by service of a summons and complaint on the corporation and four of the individual defendants on various dates between March 4 and 15, 1954. The defendants so served answered promptly, and the individual defendants demanded an examination of plaintiffs before trial. Plaintiffs also demanded pretrial examination of the defendant New York Central Railroad Company, and have already completed that examination of the corporate defendant, by its president. Now, however, plaintiffs seek to stay defendants from examining them on the ground of prematurity under our recently promulgated rule XI of the Trial Term Rules of New York County.

It is apparent that this litigation was commenced because of the pending proxy fight for control of the defendant railroad. After litigants who instituted the action have themselves sought [74]*74and fully obtained an examination of the corporate defendant before the date of the proxy vote, they are in no position now fairly to complain about the prematurity of their own examination before trial. For them it is too late to claim delay or prematurity. Any other ruling would, in our opinion, be unfair.

We think, however, that items 11, 12, 13 and 14 of the examination should be stricken at this stage of the proceedings, especially in view of other litigation pending, without prejudice, however, to renew the application to examine on such items at an appropriate time.

The orders appealed from should be modified as aforesaid, and, as so modified, affirmed, with $20 costs and disbursements, to defendants-respondents.

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Per Curiam.

The plaintiffs started this lawsuit by service of a summons and complaint on the corporation and four of the individual defendants on various dates between March 4 and 15, 1954. The defendants so served answered promptly, and the individual defendants demanded an examination of plaintiffs before trial. Plaintiffs also demanded pretrial examination of the defendant New York Central Railroad Company, and have already completed that examination of the corporate defendant, by its president. Now, however, plaintiffs seek to stay defendants from examining them on the ground of prematurity under our recently promulgated rule XI of the Trial Term Rules of New York County.

It is apparent that this litigation was commenced because of the pending proxy fight for control of the defendant railroad. After litigants who instituted the action have themselves sought [74]*74and fully obtained an examination of the corporate defendant before the date of the proxy vote, they are in no position now fairly to complain about the prematurity of their own examination before trial. For them it is too late to claim delay or prematurity. Any other ruling would, in our opinion, be unfair.

We think, however, that items 11, 12, 13 and 14 of the examination should be stricken at this stage of the proceedings, especially in view of other litigation pending, without prejudice, however, to renew the application to examine on such items at an appropriate time.

The orders appealed from should be modified as aforesaid, and, as so modified, affirmed, with $20 costs and disbursements, to defendants-respondents.

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Bluebook (online)

284 A.D. 72, 130 N.Y.S.2d 340, 1954 N.Y. App. Div. LEXIS 3345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-ebbott-nyappdiv-1954.