185 N.E. 685 | NY | 1933
Lead Opinion
Defendant Inecto, Inc., manufactures by a secret formula a hair dye alleged in the complaint to be inherently dangerous and to have injured plaintiff by its application to her scalp, eye lashes and eyebrows. After joinder of issue plaintiff served notice upon defendant that its testimony before trial would be taken at a certain time and place. The notice specified that the matters, among others, upon which defendant would be examined relate to the chemicals, poisons, drugs and other ingredients and their percentages used in the product and also to its preparation particularly in respect to the supervision of its manufacture by a pharmacist or druggist. Upon affidavit by one of defendant's officers an order to show cause why the notice of examination should not be vacated was issued. In an answering affidavit, plaintiff's counsel conceded, if defendant would give testimony concerning ingredients and component parts, that production of the formula would not be necessary. The Special Term limited the scope of the examination but denied the motion to vacate and directed the examination to proceed. It incorporated in its order a ruling that disclosure of the secrets of preparation will not be required and that plaintiff will be held to her counsel's concession as set forth in his answering affidavit. As we read the order, defendant *417 must submit to examination in respect to such matters as relate to ingredients and their component parts but it is not obliged to divulge information respecting specific methods of preparing the formula, such as percentages or proportions or the process of compounding the ingredients. The Appellate Division affirmed the order and certified questions to this court.
Taking of testimony before trial is governed by sections 288, 289, 290 and 294 of the Civil Practice Act and, according to this statute, such testimony must be material and necessary. If facts are alleged from which an inference of materiality and necessity may be drawn, the disposition of a motion concerning the taking of testimony is ordinarily included within the discretionary power of the Supreme Court and we will not interfere. (Middleton v. Boardman,
Without proof of the presence of inherently dangerous and poisonous ingredients in this product, plaintiff's cause of action, as alleged, must fail. (Karr v. Inecto, Inc.,
This formula is property (Tabor v. Hoffman,
We interpret the third certified question as concrete and *419 referring to the propriety of the order as based on the record before us and not as an abstract question.
The order of the Appellate Division and that of the Special Term should be reversed with costs to appellant in all courts and the motion to vacate notice of examination granted, with ten dollars costs. The third question certified should be answered in the negative. The other questions are not answered.
Dissenting Opinion
The order is a discretionary one. The questions certified are general in their character and do not raise the question of the sufficiency of the moving papers in the pending case. The first two questions do not necessarily arise before the hearing. The last question certified "will admit of one answer under one set of circumstances, and a different answer under another." We have quite recently dismissed an appeal in a case where the generality of the question did not permit the answer "yes" or "no." (McGowan v. Metropolitan Life Ins. Co.,
The appeal should be dismissed.
CRANE, LEHMAN, KELLOGG and HUBBS, JJ., concur with O'BRIEN, J.; POUND, Ch. J. votes to dismiss in a memorandum in which CROUCH, J., concurs.
Ordered accordingly. *420