Cunningham v. Schmidt , 10 A.D.2d 732 ( 1960 )

In an action for an accounting, the appeal by notice dated October 9', 1959 is (1) from so much of an order entered September 2, 1959 as denied appellant’s motion to examine respondent before trial, and (2) from so much of an order entered October 5, 1959 as on reargument adhered to the original decision. Order entered October 5, 1959, insofar as appealed from, affirmed, with $50 costs and disbursements. No opinion. Appeal from order entered September 2, 1959 dismissed, without costs. (Graffeo v. Graffeo, 7 A D 2d 741.) Ughetta, Kleinfeld, Christ and Brennan, JJ., concur; Nolan, P. J., concurs in the dismissal of the appeal from the order entered September 2, 1959, but dissents from the affirmance of the order entered October 5, 1959, insofar as appealed from, and votes to reverse such portion of that order, and to' grant the motion to examine respondent before trial, with the following memorandum: A motion to dismiss the complaint for insufficiency was denied, and no appeal has been taken from the order entered thereon. 'Consequently, appellant is entitled to an examination as to the material facts which are in dispute.