Soehner v. Aplo Clothing Co.

Order modified and as modified affirmed, without costs. Memorandum: The production of books, papers and records cannot be compelled by notice. It must be done by order (Civ. Prae. Act, § 296), and the order herein was only one passing upon the validity of the notice, and vacating parts thereof. The subjects of the examination set forth in paragraphs 5 and 6 of the notice might seem to relate to matters of defense but, in his first cause of action, as alleged in paragraph 3 of the complaint, plaintiff conditions his right to recover upon his work being “ all right ” and, therefore, has assumed the burden of proof as to the quality of his work. All concur. (The order vacates a part of a notice of examination before trial and directs the examination of an officer of defendant corporation in an action for breach of contract.) Present — Sears, P. J., Edgcomb, Crosby, Cunningham and Taylor, JJ.