In re N. Dain's Sons Co. — 204 N.Y. 623

Majority

p. 623

In the Matter of the Application of N. Dain’s Sons Company, Appellant, for an Order for the Examination of John Lowry, Jr., Respondent, as an Expected Party to an Action.

(Submitted January 11, 1912;

decided January 30, 1912.)

Headnote

Matter of Bain's Sons Co., 146 App. Div. 918 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 13, 1911, which reversed an order of Special Term denying a motion to vacate an order for the examination of the respondent herein as an expected party to an action.

The following question was certified: “Whether sections 810 et seq. of the Code of Civil Procedure author

p. 624

ize the examination of a proposed party to an action not yet begun for the purpose of obtaining facts upon which to frame a complaint.”

Nathan P. Bushnell for appellant.

Robert W. Bernard for respondent.

Order affirmed, with costs, and question certified answered in the negative on opinion of Miller, J., in Matter of Schlotterer ( 105 App. Div. 115 ).

Concur: Cullen, Ch. J., Haight, Vann, Werner, Willard Bartlett, Chase and Collin, JJ.