Fuchsman v. George Raptis Yarns, Inc.

Murphy, J. The defendant in this action is being sued for damages for an alleged breach of warranty pertaining to certain woolen yarns sold by it to the plaintiffs under a written agreement. The defendant here seeks an order directing plaintiffs to produce for inspection by the defendant samples of the yarns and of the sweaters into which some of the yarn has been woven; and also, to permit the defendant to take samples of the aforesaid materials for inspection. Section 324 of the Civil Practice Act has been liberally construed by the courts in this regard and the courts have repeatedly granted orders of inspection of this kind. The case of Jerry & Herbert Lehmann, Inc., v. Turtle Bros. Inc. (149 Misc. 744) is a decision in point. There it was held: “ The statute should be liberally construed. It is a powerful aid in the search for the truth. The aim of a trial is to award victory [196] to the right. If tests will assist in furthering or discovering the right, they should be allowed.” In that case the court allowed tests to be made of shoes which were manufactured from linen supplied by the defendant therein to the plaintiff and which were allegedly unfit for the purpose purchased. Similarly see Treacey v. F. W. Woolworth Co. (248 App. Div. 640) and Reiss v. Kirkman & Son, Inc. (242 App. Div. 77). The motion herein is accordingly granted. Settle order on notice.