Smith v. Perma-Maid Co.

Order modified by striking out subdivision “ b ” of the fourth ordering paragraph and as modified affirmed, without costs of this appeal to either party. Memorandum: The appellant asks that the order appealed from be modified by striking out paragraph “ b ” of the fourth ordering paragraph of the order in question. The affidavit upon which the order is based fails to show that at the time of the accident and for a period of six months prior thereto or for any period less than six months prior thereto the defendant corporation had in its employ any employees in the same class as the defendant Van Cise. In the absence of such an allegation the Special Term should not have ordered the production of the records mentioned in said paragraph “ b.” All concur. (The order grants plaintiff’s motion for an examination before trial, in an automobile negligence action.) Present —• Crosby, P. J., Cunningham, Dowling, Harris and McCum, JJ.