Shontell v. Glens Falls Insurance

In an action to recover damages for personal injuries and to declare a release instrument void, order granting in part and denying in part appellant’s motion for examination before trial and discovery and inspection, modified, by adding to the last ordering paragraph a provision that the order is without prejudice to the renewal of the motion for discovery and inspection of any statement which may have been taken by defendant Brogan from appellant, on papers which shall include an affidavit by appellant and shall comply *966with the provisions of rule 140 of the Rules of Civil Practice. As so modified, the order is affirmed, without costs. The complaint is not insufficient for failure to allege tender of the payment received by appellant. (Civ. Prae. Act, § 112-g; Farrington v. Harlem Sav. Bank, 280 N. Y. 1; Hley v. Healy, 127 N. Y. 555.) If appellant gave a statement to defendant Brogan, under the circumstances alleged in the affidavit of his attorney in support of the motion, a further opportunity should be afforded him to obtain a copy thereof before trial. Nolan, P. J., Adel, MacCrate, Schmidt and Beldock, JJ., concur.