Green v. Saisselin

Hubbs, P. J. (dissenting).

I dissent and vote for reversal and to grant the motion. I think the construction placed by the Special Term on the words “ original owner ” as used in sections 288 and 289 of the Civil Practice Act is too strict. Those words should be given a construction which would include intermediate owners. The fact that the plaintiff has the affirmative of the issue is not necessarily conclusive. It seems to me that this case falls within the class of cases where it can be fairly said that there are unusual circumstances which justify the granting of an order for examination before trial. (Marine Trust Co. v. Nuway Devices, Inc., 204 App. Div. 752; National Fire Ins. Co. v. Shearman, 209 id. 538.)

Order affirmed, with ten dollars costs and disbursements.