Opinion
March 17, 1952.
Action to recover upon three promissory notes which were given by defendant Longchamps to plaintiff in pursuance of a contract for the sale of the capital stock of a certain corporation by plaintiff to said defendant; and upon an alleged guaranty of payment of one of such notes, and an alleged further agreement whereby defendant Longchamps was to pay an additional amount of money at a future date in consideration of a reduction in the amount of the purchase price. Plaintiff appeals from an order denying his motion (1) for an examination before trial, and (2) to defer the service of his bill of particulars until ten days after completion of such examination. Order reversed on the law and the facts, with $10 costs and disbursements, motion to defer the service by plaintiff of his bill of particulars until ten days after completion of the examination before trial herein directed granted, and motion for the examination granted to the following extent: The examination is allowed as to items 6 to 11 inclusive, 13, 15 to 19 inclusive, 21 and so much of item 3 as deals with the amounts of credits to which said defendant Longchamps was entitled as against the note upon which the first cause of action is based. In connection with the examination upon said items said defendant is directed to produce at the examination the books, records and papers specified in the notice of motion. As to the remaining items the examination is disallowed. The examination herein directed is limited, however, to any one of the four persons named in the concluding paragraph of the reply affidavit, the person to be examined to be designated by plaintiff in a notice which may also fix the time and place for the holding of the examination, such time to be not less than five days nor more than ten days after the service of the notice. This limitation is without prejudice to further application for examination of one or more of the remaining persons mentioned in the reply affidavit, after the conclusion of the taking of the testimony of the person first designated by plaintiff. In our opinion, examination with respect to the items allowed is material and necessary for plaintiff's preparation of this action for trial. Upon the termination of the examination he should then be able to furnish an accurate and comprehensive bill of particulars. The service of such a bill will be more conducive to orderly and expeditious procedure. Nolan, P.J., Carswell, Wenzel, MacCrate and Schmidt, JJ., concur.