Kimball
v.
John Budd Company

Appellate Division of the Supreme Court of New York, Second DepartmentNov 1, 1925
215 App. Div. 724 (N.Y. App. Div. 1925)

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    185 N.E. 395 (N.Y. 1933)

    …As to the second department, Oshinsky v. Gumberg ( 188 App. Div. 23) stated the rule to be that an applicant…

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    130 Misc. 767 (N.Y. Misc. 1927)

    …193), and the latter is, therefore, not entitled to an examination before trial as to the same. ( Kimball v.…

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November, 1925.


Order denying defendant's motion to vacate notice of examination reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The defendant has the affirmative upon the issues as to which the examination is sought, and plaintiff is not, therefore, entitled to the examination. ( Oshinsky v. Gumberg, 188 App. Div. 23; Zappas v. Horwill, 210 id. 861; Middleton v. Boardman, Id. 467, 860; appeal dismissed, 240 N.Y. 552.) Kelly, P.J., Rich, Jaycox, Young and Kapper, JJ., concur.