Opinion
March 9, 1959
In an action by an assignee to recover for goods sold and delivered by its assignor, a Delaware corporation whose office at the time of the transactions was in Lowell, Massachusetts, and whose office is presently in Miami, Florida, the appeal is from an order, inter alia, denying appellant's motion (1) to vacate respondent's notice to examine appellant before trial, (2) to direct respondent to produce for examination before trial its assignor, by S.J. Schaefer, its vice-president, and William F. O'Connell, its former sales manager, (3) for the production of the assignor's books and records, and (4) to stay respondent from proceeding in the action until after the completion of the examination before trial by appellant. Order affirmed, with $10 costs and disbursements, without prejudice to an application by appellant, if it be so advised, to examine the assignor upon written interrogatories or open commission. In our opinion, there was no showing that respondent has control of its assignor. ( National Bank of North Hudson v. Kennedy, 223 App. Div. 680. ) Nolan, P.J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.