50 New Walden, Inc. v. McKaig

Order unanimously reversed, with $25 costs *585and disbursements and motion granted, without costs. Memorandum: The motion for discovery and inspection should have been granted in the exercise of sound discretion. Special Term denied the motion on the ground that the documents to be produced and examined included opinions as to the cause of the collapse of a building. Such opinion evidence, Special Term said, would not be admissible under section 324 of the Civil Practice Act. Possible inadmissibility alone would not necessarily preclude the examination. (Beyer v. Keller, 11 A D 2d 426; O’Grady v. Burr, 2 A D 2d 712.) If specific objections are made during the examination or at trial, either Special Term or the Trial Judge, as the ease may be, will be able to determine the extent of discovery during the examination, or to pass upon admissibility during the trial. (De Vito v. New York Cent. R. R. Co., 32 Misc 2d 495, affd. 3 A D 2d 692.) The order should be reversed and the motion granted. (Appeal from order of Erie Special Term denying plaintiffs’ motion for discovery and inspection.) Present — Williams, P. J., Bastow, Goldman, Halpern and Henry, JJ.