Cole v. 1400 Broadway Corp. — 267 A.D. 93

Majority

p. 93

Arthur Cole, Doing Business under the Name of Sheila-Lynn, Respondent, v. 1400 Broadway Corporation, Defendant, and Philip Zahn et al., Doing Business under the Firm Name of Phil Zahn & Company, Defendants-Appellants.

First Department,

November 12, 1943.

p. 94

Leonard E. Turits for appellants.

Herbert J. Fabricant of counsel (Abraham Lipton with him on the brief; Weisman and Grant, attorneys), for respondent.

The appellants are members of a partnership. The direction in the order complained of that they shall produce “ that employee who has knowledge of the information sought ” is not authorized by any provision of section 288 of the Civil Practice Act. Therefore,' the order should be reversed.

Because of the facts in this case, respondent may seek a further examination of the individual defendants with a view to obtaining information as to the name of the employee who opened the appellants’ place of business on the day of the happening of the event. It may be that the respondent, upon a subsequent examination, will obtain sufficient knowledge to bring himself within that part of section 288 which deals with a person other than a party to an action.

The order should be reversed, with twenty dollars costs and disbursements, and the motion denied.

Martin, P. J., Glennon, Untermyer, Dore and Cohn, JJ., concur.

Order unanimously reversed, with twenty dollars costs and disbursements, and motion denied.