223 A.D. 782 | N.Y. App. Div. | 1928
Order denying motion for examination of defendant before trial, through Eugene Spitz, its president, reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Appellant’s theory is that there were two agreements made between the parties to this action; that the first agreement was induced by fraud and subsequently set aside and a new agreement made; and that the consideration for the making of the new agreement was appellant’s waiver of his right to rescind the first agreement because of fraud and to recover damages for a breach thereof. The action is based upon the subsequent agreement. We are of opinion that appellant is entitled to an examination of respondent, not only as to the alleged fraudulent statements which induced the making of the original agreement, but also as to the facts and circumstances surrounding the making of the new contract, as set forth in the complaint. Lazansky, P. J., Rich, Hagarty, Seeger and Carswell, JJ., concur.