Weinberg v. Berkshire Ice Co., Inc.

Full title: JULIUS WEINBERG, Respondent, v . BERKSHIRE ICE COMPANY, INC., Appellant

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 15, 1921

196 App. Div. 364 (N.Y. App. Div. 1921)

187 N.Y.S. 716

Opinion

April 15, 1921.

William A. Davidson, for the appellant.

Charles F. Dalton, for the respondent.

PER CURIAM:

The answer of the defendant foreign corporation admits the allegation in the complaint that it is engaged in business in this State, and in its counterclaim it alleges that it is duly authorized to do business in the State of New York. It is also admitted that the contract upon which the action is based was made at Port Chester in the State of New York, and the contract is to be performed within this State. Under these circumstances the doctrine of Sivelli v. New River Coal Co. ( 184 App. Div. 62) ; Hall v. Gilman (87 id. 248) and Jacob v. Prudential Insurance Co. (186 id. 908), cited by appellant, is not applicable. The defendant transacting business here is subject to examination under the Code of Civil Procedure (§ 870 et seq.), as in the case of a domestic corporation. ( German-American Coffee Co. v. Diehl, 216 N.Y. 57; Bluthenthal Bickart, Inc., v. Crowley, No. 2, 138 App. Div. 845.) In addition to this, the defendant having applied upon the affidavit of its attorney for an order for a bill of particulars and such bill of particulars having been served by plaintiff, made a second application upon a similar affidavit for a further bill of particulars which plaintiff averred he was unable to furnish without an examination of defendant and its books of account. Defendant insisting upon such further particulars, the court granted the order, but at the same time made the order for defendant's examination which it seeks to vacate. It would be unjust to grant the demand of the defendant foreign corporation and then refuse to plaintiff the means of compliance. The question of the sufficiency of the service of the order upon the attorney for defendant is not now before us. The objection to the service is not a ground for vacating the order.

The order should be affirmed, with ten dollars costs and disbursements.

JENKS, P.J., MILLS, PUTNAM, BLACKMAR and KELLY, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.