Holcomb v. Union Confectionery Machinery Co.

280 A.D. 252 | N.Y. App. Div. | 1952

Per Curiam.

Plaintiff buyer has already furnished defendant seller a detailed bill of particulars substantially giving defendant all the information sought by the examination before trial granted by the order appealed from except possibly as to items 5 and 7 in defendant’s notice of motion for plaintiff’s examination. On this record, in our opinion, it is onerous and presently unnecessary to compel plaintiff to travel round trip across half the continent for this examination before trial.

The order appealed from should be modified to permit defendant to examine plaintiff when plaintiff comes to New York for the trial but only as to items 5 and 7 at a time and place to be specified in the order to be entered herein; or if plaintiff comes to New York prior thereto, defendant should be advised and given opportunity of then conducting the examination herein directed. As so modified the order appealed from should be affirmed, with $20 costs and disbursements to plaintiff-appellant.

Defendant, if so advised, may now move, however, for examination of plaintiff by written interrogatories at plaintiff’s place of business in Texas. Settle order.

Peck, P. J., Dore, Cohn and Callahan, JJ., concur.

Order unanimously modified in accordance with the opinion herein and, as so modified, affirmed, with $20 costs and disbursements to appellant. Settle order on notice.