Cleary v. La Touraine Coffee Co. , 271 A.D.2d 956 ( 1947 )

Cross appeals from an order of the Supreme Court at Special Term, entered December 13, 1946, in New York County, which granted á motion by plaintiff for a continuation of an examination before trial and for a discovery and inspection. Plaintiff appeals from so much of said order as denied examination as to items 1, 2, 5, 8, 12 and 13, and denied inspection as to items 2, 3, 5, 11 and 12. Defendant appeals from so much of the order as 'granted said motion.

Per Curiam.

In an action for personal injuries brought by plaintiff against defendant, defendant admitted ownership of the automobile in question but denied management, operation and control. At an examination of defendant by order dated August 12, 1946, numerous questions were objected to but the objections were not submitted to or ruled on by Special Term, Part II. Thereafter, on December 13, 1946, Special Term, Part I, granted in part plaintiff’s application to continue defendant’s examination before trial and for a discovery and inspection on stated items. From that later order both parties appeal. ...

On defendant’s appeal, the order appealed from insofar as it granted an examination before trial should be modified by striking out items 10, 11, 14 and 15, and by omitting from item 16 the words “ at any time ” and substituting "for a period immediately prior to and at the time of the accident the order insofar as it allows a discovery and inspection should be modified by striking out items 1, 6, 7, 8, 9 and 10; and that part of the order which overrules all objections raised on the prior examination should be struck out without prejudice to plaintiff’s right to apply for rulings at Special Term, Part II, Supreme Court, New York County.

On plaintiff’s appeal the order appealed from should be affirmed.

The order appealed from should be modified, accordingly, and as so modified affirmed, with $20 costs and disbursements to defendant-appellant.

Martin, P. J., Glennon, Dore, Cohn and Van Voorhis, JJ., concur.

Order unanimously modified in accordance with opinion and as so modified affirmed, with $20 costs and disbursements to defendant-appellant. The date for the examination to proceed to be fixed in the order. Settle order on notice.