Opinion
April 27, 1961
I. Ben Greenman for plaintiff.
Binder, Silber Stangler for defendant.
In an action for libel plaintiff moves to examine the defendant corporation before trial and for the production at that examination of certain books and records pursuant to section 296 and section 324 of the Civil Practice Act. The defendant cross-moves to examine the plaintiff.
The defendant objects to Items 3, 4, 6, 7 and 8 of the items of examination in plaintiff's notice of motion on the ground that the matters sought therein are within the knowledge of the plaintiff and that the defendant has the burden of proof as to these matters. The plaintiff objects to Items 1, 3, 4 and 5 of the defendant's items of examination on the ground that they are not material to any issue raised by the pleading and to Item 2 on the ground that the burden of proving this issue rests on the plaintiff.
Examinations before trial are permitted in libel actions without regard to which party has the burden of proof. ( Milner v. Long Is. Daily Press Pub. Co., 10 A.D.2d 519.) The fact that a party already has knowledge of the matters sought is no reason for refusing the examination. ( McGrath v. Blumenthal, 220 App. Div. 781.)
This court finds that all items in the respective items of examination are proper. Accordingly, the plaintiff's motion is granted except that the production of books and records upon that examination for use thereon will be in the manner contemplated in section 296 of the Civil Practice Act and not otherwise, since it would not be proper to direct a discovery and inspection pursuant to section 324 of the Civil Practice Act before the conclusion of the examination before trial. ( Battaglia v. New York City Tr. Auth., 2 A.D.2d 985.) This disposition is without prejudice to a renewal of the application for discovery and inspection under section 324 of the Civil Practice Act at the conclusion of the examination before trial granted herein. The defendant's cross motion is also granted. The examinations granted herein are to take place at Special Term, Part II, of this court at a date and time to be fixed in the order to be entered hereon.