Rubel Corp. v. Rosoff

In an action in equity brought by the plaintiffs-appellants for the rescission of a [869] contract whereby defendant-respondent Rosoff Ice Corporation sold a certain ice manufacturing plant to plaintiff-appellant Rubel Corporation, for the sum of $525,000, upon the ground of substantial failure of consideration, order denying plaintiffs’ motion to examine certain non-parties to the action as witnesses before trial, in pursuance of section 288 of the Civil Practice Act, reversed on the law and the facts, with ten dollars costs and disbursements to appellants, and motion granted to the extent only (a) of directing such examination of Central Ice Co., Inc., by Benjamin ShelMn, its president; of Samuel Levinson; and of Rosoff Haulage Corporation, by Irving Rosoff, its president; and (b) to the further extent of directing Rosoff Haulage Corporation, by its president, to produce its books and records upon that examination for use thereon in the manner contemplated in section 296 of the Civil Practice Act, and not otherwise. The examination will proceed on five days’ notice at a time and place to be stated in the order. The plain-tiffs-appellants established the existence of “ special circumstances,” within the meaning of section 288 of the Civil Practice Act, warranting the granting of plaintiffs’ motion to the extent indicated. (Marine Trust Co. v. Nuway Devices, Inc., 204 App. Div. 752, 753; Manufacturers Trust Co. v. American Nat. Fire Ins. Co., 232 id. 536; De Luca v. Kerwin, 239 id. 850.) There is no authority, however, for the inspection of books, papers and records of Rosoff Haulage Corporation as requested by the plaintiffs on the motion, for the reason that such corporation is not a party to the action and, therefore, not within the purview of section 324 of the Civil Practice Act, and its related rule 140 of the Rules of Civil Practice, which govern inspection of books, papers and documents in an action. Hagarty, Carswell, Johnston, Taylor and Close, JJ., concur. Settle order on notice.