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Nelson Co. v. J. & W. Cahill & Co.

131 N.Y.S. 576 Court N.Y. App. Term Decision date 1911-10-16 English

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p. 576
NELSON CO. v. J. & W. CAHILL & CO.
(Supreme Court, Appellate Term.
October 16, 1911.)

Headnote

Discovery (§ 40*)—Examination Before Trial—Scope of Order.
An order for defendant’s examination before trial should be limited to an examination as to matters alleged in the complaint and denied by the answer.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 52, 53; Dec. Dig. § 40.[1] ]
Appeal from City Court of New York, Special Term.
Action by the Nelson Company against J. & W. Cahill & Co. From an order directing defendant to submit to an examination before trial, it appeals. Affirmed, as modified.
Argued before SEABURY, GUY, and COHALAN, JJ.
Joseph Fennelly, for appellant.
J. A. Seidman, for respondent.

The order appealed from is too broad in its scope. It should be modified, by limiting the examination of the defendant solely to the matters set forth in the complaint, which are denied by the answer, and, as thus modified, affirmed, with disbursements to the appellant.

Order modified, by striking therefrom the words “and relative to the issues- in this action,” and, as modified, affirmed, without costs, but

p. 577
with disbursements to the appellant, with permission to the plaintiff, to apply to the lower court to fix a date for the hearing and to provide for service in accordance with sections 873, 874, and 875 of the Code of Civil Procedure.