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In re N. Dain's Sons' Co.

131 N.Y.S. 1130 Court N.Y. App. Div. Decision date 1911-10-13 English

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p. 1130
In re N. DAIN’S SONS’ CO.
(Supreme Court, Appellate Division, Second Department.
October 13, 1911.)

Headnote

In the matter of the application of N. Diain’s Sons’ Company for an order for the examination of John Lowry, Jr.

The disposition of this appeal is controlled by the rule stated in Matter of Schlotterer, 105 App. Div. 115 , 93 N. Y. Supp. 895 , which holds that section 870 et seq. of the Code of Civil Procedure do not authorize the examination of a proposed party to an action not yet begun, except for the sole purpose of perpetuatingjthe testimony of such proposed party. The application under review is made upon the ground that the plaintiff cannot safely frame his complaint without such examination. Order reversed, with $10 costs and disbursements, and motion granted, with costs.