Majority
p. 618COHN et al. v. STANDARD MAIL ORDER CO. (No. 6349.) (Supreme Court, Appellate Division, First Department. November 6, 1914.) Argued before INGRAHAM, P. J„ and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.
Headnote
1. Discovery (§ 58[1] ) — Order—Person to be Examined — Corporations.An order for examination of defendant cqrporation before trial, naming no officer or managing agenteof it to be examined, is insufficient.
[Ed. Note. — For other cases, see Discovery, Cent. Dig. § 72; Dec. Dig. § 58.*]
2. Discovery (§ 61*) — Order—Person to be Examined — Corporations.
The amended order, undertaking to supply the deficiency in the original order for examination of defendant before trial, naming no officer or managing agent of it to be examined, is improper; the insertion of names not being founded on any affidavit showing the persons were officers of such agents, and the papers in the case indicating they were not
[Ed. Note. — For other cases, see Discovery, Cent. Dig. § 75; Dec. Dig. § 61.*]
Appeal from Special Term, New York County.
Action by William I. Cohn and another against the Standard Mail Order Company, a corporation. From an order directing examination of defendant before trial, it appeals.
Reversed, and motion granted.
C. B. Brophy, of New York City, for appellant.
S. S. Breslin, of New York City, for respondents.
[1,2] The original order for examination of the defendant before trial was clearly insufficient, because, it named no officer or managing agent of defendant to be examined. The amended order, from which this appeal is taken, undertook to supply this deficiency by inserting certain names, but was founded on no affidavit
p. 619
showing that the persons named were officers or managing agents. •Indeed, the papers in the case seem to indicate that they were not.
Order appealed from reversed, with $10 costs and disbursements, and motion to vacate order granted, with $10 costs.