Marlin Coal & Fuel Corp. v. Gallagher

Order affirmed, with $20 costs and disbursements to the respondent. The reply in this case may be frivolous but we cannot assuredly say that it is. Under the circumstances the order appealed from should be affirmed. Also, under the circumstances the defendant-appellant would be entitled to a discovery and inspection of plaintiff’s records. Present — Peck, P. J., Dore, Cohn, Breitel and Bastow, JJ.; Breitel, J., dissents in the following memorandum: I dissent on the ground that section 255-a of the Civil Practice Act is applicable and mandatory. Plaintiff’s proper remedy was to apply for an examination before trial and, perhaps, for an extension of time in which to serve its reply if it lacked sufficient information to supply the details required in a reply that could comply with the statute. [See post, p. 783.]