Opinion
June 30, 1947.
Action to recover damages for fraud. Order granting reargument and on reargument adhering to the original decision which granted in part plaintiff's motion for an examination before trial, modified on the law and the facts by striking out the words "adhered to and the motion for resettlement and amendment of said order is denied" and inserting in place thereof provisions (1) adding to each of the items granted the words "and the relevant facts and circumstances incident thereof," as requested in the notice of motion; (2) granting item "e" to the extent of the submission of said statement to plaintiff, defendants' intention and purpose to induce plaintiff to rely thereon, and the relevant facts and circumstances incident thereto; (3) granting item "g" to the extent of plaintiff's signature and acceptance of various papers, agreements, and other writings with reference to the sale of the shares of stock, and the relevant facts and circumstances incident thereto; and (4) directing that the order be without prejudice to the making of an application for discovery and inspection upon the completion of the examination before trial, if plaintiff be so advised. As so modified, the order on reargument, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellant, the examination to proceed on five days' notice. Appeal from the original order dismissed, without costs. Insofar as the order appealed from denied the relief hereby granted, it was an improvident exercise of discretion. ( Royce v. Ziegfeld, 224 App. Div. 651; Chasnoff v. Weiss, 234 App. Div. 775.) Hagarty, Acting P.J., Carswell, Adel, Nolan and Sneed, JJ., concur.