Opinion
December 16, 1946.
Action to set aside an assignment of a mortgage made by two officers of a corporation to their wives, which mortgage assignment allegedly had been procured with the funds of the corporation. Plaintiff appeals from two identical orders relating to Lucy Picone and Angelina Picone, respectively, and on their motions striking twenty items from the notices of examination; placing limitations on the remaining items of examination and denying plaintiff's cross applications for an order directing the respondents to produce papers, documents, etc. Orders reversed on the law and the facts, with one bill of $10 costs and disbursements to appellant, the motion to strike out or modify the items in each notice of examination denied, and the cross applications to require each respondent to produce papers, documents, etc., pursuant to section 296 of the Civil Practice Act, granted, without costs, the examinations to proceed on five days' notice. It adequately appears that the items struck out were material and necessary to sustain the plaintiff's cause of action. It was improvident to place limitations on the scope of the examinations under eight of the items. ( Eagle-Picher Lead Co. v. Mansfield Paint Co., Inc., 203 App. Div. 9.) The cross applications of the plaintiff for an order requiring the production of papers and documents, etc., should have been granted. ( Meretzky v. Wolff, 224 App. Div. 745.) Lewis, P.J., Hagarty, Carswell, Johnston and Adel, JJ., concur.