| N.Y. App. Div. | Oct 8, 1964
Order, entered on March 31, 1964, relative to the examination of defendant and the production of its records, unanimously modified, on the law and on the facts and in the exercise of discretion, to provide that the expenses referred to in the second ordering paragraph shall be paid by defendant instead of plaintiff, and that defendant shall produce, in addition to the correspondence referred to in the fifth ordering paragraph, any other documents or records which in any way relate to the level of performance expected of plaintiff, and, as so modified, said order is affirmed, without costs. Consent to the modifications is contained in defendant’s brief, and we see no reason to alter Special Term’s disposition in other respects. The point that defendant waived its right to object to the scope of the notice of examination was not raised below, and disregard of that fact is not warranted by this record. Settle order on notice fixing date for examination to proceed. Concur — Botein, P. J.j Breitel, Rabin, Eager and Staley, JJ.