Chippona v. General Railway Signal Co.

There have now been called to our attention the cases of Donoghue v. Callanan (152 App. Div. 162) and Chojnacki v. Interborough Rapid Transit Co. (76 Misc. 427) in which it was held that a provision for inspection and discovery permitted as incidental thereto the taking of photographs and the taking of samples for analysis. In view of these decisions we have reached the conclusion that the order here affirmed does not overpass the limits stated in section 324 of the Civil Practice Act. This decision is in part inconsistent with our ruling in Mangione v. General Railway Signal Co. (248 App. Div. 847), decided September 23,1936, where the authorities above mentioned were not called to our attention nor considered by us. We, therefore, overrule the decision in the Mangione cose in affirming this order.

All concur, except Crosby and Lewis, JJ., who dissent and vote for modification in accordance with the ruling in Mangione v. General Railway Signal Co. (248 App. Div. 847). Present—Sears, P. J., Taylor, Thompson, Crosby and Lewis, JJ.

Order affirmed, with ten dollars costs and disbursements.