McCabe v. Interstate Iron & Steel Co.

Appeal by one of two defendants in an action on contract (a) from a judgment in favor of plaintiff and against appellant and (b) from an order granting plaintiff partial summary judgment against appeHant, on which the judgment appealed from was entered. Order and judgment reversed on the law, with ten doHars costs and disbursements, and motion denied, with ten doHars costs. The order and judgment rest solely upon certain admissions made by a former treasurer of appeHant at an examination before trial. Since such witness was not an officer or employee of appeHant when he was examined, and since this case does not come within recently enacted legislation (Laws of 1941, chap. 921 ), his examination was not an examination of appeHant and was “ nothing more than the examination of a witness ” (McGowan v. Eastman, 271 N. Y. 195, 198), who then had no power to bind the corporation through admissions. Furthermore, triable issues were raised by the pleadings and the affidavits used on the motion. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.