Supreme Court, Special Term, Kings CountyJan 29, 1943
179 Misc. 529 (N.Y. Misc. 1943)

January 29, 1943.

Steckler, Frank Newmark for Louis H. Schroeder and Corrugated Container Corporation, defendants.

Leon Dashew for plaintiff.

Samuel L. Wallerstein for Jack Kornreich et al., defendants.

Samuel Chester for Samuel L. Wallerstein, defendant.

Charles Kraft for Jacob Press and Bilt-Rite Box Corporation, defendants.

Motion on behalf of the defendant Corrugated Container Corporation to examine the plaintiff before trial as an adverse party and for an inspection of books and records. The plaintiff in his complaint charges the defendant with having conspired with others to destroy his business. Defendant in its answer sets up two separate defenses, in the first of which it charges plaintiff with conspiracy, with others, to cause damage, and in the second separate defense sets up a release. It is in support of its separate defenses that the examination is sought. The examination will be permitted as follows: Items 1 to 6, inclusive, 10, 11, 12, 18 to 22, inclusive, and 43 will be allowed. Items 5, 7, 8, 9, 13 to 17, inclusive, 23 to 29, inclusive, 31 to 41, inclusive, 43, 44 and 45 will be disallowed. Item 30 will be modified by striking out all after the words "the nature thereof." The production and inspection of books and records will at this time be denied without prejudice to renewal after the examination on a showing of the necessity therefor. It appears that the plaintiff is in the armed forces. No specific date can be fixed for his examination and it may be that plaintiff's assignments in the service will make it impossible for such examination to be had. However, an order may be entered fixing the time for examination sine die with the provision that such examination proceed at a time when plaintiff is on furlough or leave, but in the event plaintiff fails to submit to examination, upon proof by defendant that plaintiff was on furlough or leave without submitting to such examination, application may then be made to stay the trial of the action until plaintiff submits to such examination.