Denver Pharmaceutical Mfg. Co. v. Crystal Chemical Co.

Order denying defendant’s motion to vacate or modify notice of examination before trial reversed upon the law and the facts, without costs, and motion to modify granted, without costs, to the extent of striking from item 10 of the notice the words “ and the profit's therefrom; ” plaintiff, within five days from service of a copy of the order herein, to pay defendant the subpoena fees due to the witness Gillespie under subdivision 3, section 404 of the Civil Practice Act. Upon payment of such fees, examination to proceed on five days’ notice before the justice presiding at Special Term of the Supreme Court of the State of New York, in and for the county of Bronx, at the place and hour stated in the order. The plaintiff is not entitled to an examination as to the [855] profits at tMs stage of the case. (Conrady v. Buhre, 148 App. Div. 776; De Rapalie v. Gavin, 209 id. 883.) Lazansky, P. J., Kapper, Carswell, Seudder and Tompkins, JJ., concur.