Browning, King & Co. v. O'Brien — 137 N.Y.S. 697

Majority

p. 697

BROWNING, KING & CO. v. O’BRIEN.

(Supreme Court, Appellate Term, First Department.

October 23, 1912.)

Headnote

Discovery (§ 73*)—Examination Before Trial—Scope.

In an action for goods sold and delivered, it was error to limit the scope of defendant’s examination before trial to the sole question of a delivery of the goods, and excluding examination as to the sale and any promise to pay for them.

[Ed. Note.—For other cases, see Discovery, Gent. Dig. § 88; Dec. Dig. § 73.*]

♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from City Court of New York, Special Term.

Action by Browning, King & Co. against Mary A. O’Brien. From an order denying a motion to vacate an order limiting the scope of defendant’s examination before trial, plaintiff appeals.

Reversed, and motion granted.

Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.

Olcott, Schwarzschild & Schramm, of New York City (Arnold O. Schramm, of New York City, of counsel), for appellant.

Thomas O’Callaghan, of New York City, for respondent.

This action was brought to recover for goods sold and delivered. The defense is a general denial.

[1] Plaintiff obtained an order to examine defendant upon all the issues raised by the pleadings. Upon the return day the court limited the examination to the delivery only of the goods, excluding all examination as to the sale and as to any promise to pay for the goods.

To limit the examination in an action for goods sold and delivered to the naked question of the delivery of the goods renders it futile.

Order reversed and motion granted, with $10 costs and disbursements of appeal. All concur.