Jackson v. United States Tire Co. , 155 N.Y.S. 402 ( 1915 )

Bijur, J.

Plaintiff has sued for an alleged breach of warranty given by defendant in connection with the sale of twelve automobile tires “ prior to December 9th, 1912 ” to one of plaintiff’s assignors and for breach of warranty in regard to other tires delivered to the other of plaintiff’s assignors under circumstances which are not material.

Defendant, upon an affidavit showing among other facts that it had sold many tires beyond the number named in the complaint to plaintiff’s assignors prior to December 9, 1912, and therefore is not able to determine what tires are referred to in the complaint, has secured an examination of plaintiff, “as an adverse party before trial concerning the alleged sale and warranty of twelve certain solid rubber automobile tires, etc. ’ ’

Although appellant contends in his brief that the defendant has mistaken its remedy and should, if anything, apply for a bill of particulars before answer, he has, as I understand it, upon the argument substantially conceded that defendant is entitled to information sufficient to enable it to determine its defense, if any. Such information should, however, be confined to the identity and date of purchase of the tires complained of. The order appealed from is, however, manifestly far too broad to accomplish the simple purpose aimed at.

Appellant also complains that the extension of time contained in defendant’s order for examination violates both rule XXTV of the General Rules of Practice and rule XI of the Rules of the City Court. Prom plaintiff’s affidavit it appears without contradiction that defendant’s time to answer the amended complaint served on July 20, 1915, had been extended a number of times until under the last stipulation it expired on September twentieth. The order for examination was obtained September seventeenth, but was not served on plaintiff’s attorney until September twentieth, and on the plaintiff himself September twenty-third, or twenty-fourth. Under no circumstances, therefore, did plaintiff or his attorney have the two-days notice required by the rules.

The defendant offers no excuse for its laches or delay except to cite in its brief Dudley v. Press Pub. Co., 53 Hun, 347, which differs radically from the case at bar in that very respect. I think, on the other hand, that if defendant should apply for leave to open its default the order should he granted on payment of the costs of the action to date without the necessity of defendant disclosing its defense, since from the peculiar facts developed by the affidavits it is evident that defendant cannot know what defense it may have,.nor whether it has any at all. If, therefore, to avoid the trouble and delay of an additional motion, both parties will, within three days, file their consent to treat the application for the order for examination as one also to open defendant’s default on notice, the same will be opened upon payment by defendant of the costs of the action, namely, twenty-five dollars, and defendant’s time extended as in the order of September 17, 1915, except that the right to demur should be eliminated. Said order will be also modified, however, by limiting the examination of plaintiff to a statement of the date of purchase and the identity of the tires complained of, or, in the alternative, at plaintiff’s option to furnish a bill of particulars thereof, such examination to take place or the bill be furnished on November sixteenth, and, as so modified, affirmed, with ten dollars costs and disbursements of this appeal to appellant. If the consent above provided for is not filed by both parties, the order appealed from will be .reversed and the order of September 17,1915, vacated with ten dollars costs and disbursements of the appeal to appellant.

Lehman and Finch, JJ., concur.

Order modified, and, as so modified, affirmed, with ten dollars costs.