Opinion
May 24, 1963
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and Henry, JJ.
Order unanimously reversed, with $25 costs and disbursements and motion granted, without costs. Memorandum: The motion for discovery and inspection should have been granted in the exercise of sound discretion. Special Term denied the motion on the ground that the documents to be produced and examined included opinions as to the cause of the collapse of a building. Such opinion evidence, Special Term said, would not be admissible under section 324 of the Civil Practice Act. Possible inadmissibility alone would not necessarily preclude the examination. ( Beyer v. Keller, 11 A.D.2d 426; O'Grady v. Burr, 2 A.D.2d 712.) If specific objections are made during the examination or at trial, either Special Term or the Trial Judge, as the case may be, will be able to determine the extent of discovery during the examination, or to pass upon admissibility during the trial. ( De Vito v. New York Cent. R.R. Co., 32 Misc.2d 495, affd. 3 A.D.2d 692.) The order should be reversed and the motion granted.