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Gottlieb v. A. Entemann, Inc.

157 A.D. 251 Court Second Department, Decision date 1913-05-09 English

Delivered by Stapleton, J.:

Contents

Majority

p. 251
Harry Gottlieb, Respondent, v. A. Entemann, Inc., Appellant.
Second Department,
May 9, 1913.

Headnote

Practice — discovery of machine — examination before trial.
An ex parte order, requiring a defendant to make discovery of a certain machine on which plaintiff was working when injured, and also requiring the president and foreman of defendant to submit to an examination before trial, is irregular and should be vacated,
p. 252
Appeal by the defendant, A. Entemann, Inc., from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 2d day of April, 1913.
Michael J. Tierney [Carl Schurz Petrasch with him on the brief], for the appellant.
Thomas J. O’Neill, for the respondent.

The appeal is from an order denying a- motion to vacate an order, obtained ex parte, which required the defendant to make discovery of a certain machine, and the appliances connected therewith, on which the plaintiff was working when he sustained his injury, and which also required the president and the foreman of the defendant to appear and submit to an examination before trial. In other words, an application under article 4 of title 6 of chapter 8 of the Code of Civil Procedure, relating to the discovery of books and papers, is united with an application under article 1 of title 3 of chapter 9 of the Code of Civil Procedure, relating to depositions taken and to be used within the State. The applications are upon the same papers and are disposed of in the same order.

A reading of the provisions of the Code clearly demonstrates the irregularity of the original order and the error of the order appealed from. (See Bloodgood v. Playback, 62 App. Div. 315 ; Matter of Thompson, 95 id. 542.)

The learned counsel for the respondent, in his points, states that the appeal should be dismissed, without costs, because the case has gone to trial since the appeal was taken. There is nothing in the record before us which would warrant such a disposition of this appeal.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with costs.

Burr, Thomas, Carr and Bich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.

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