Opinion
June 5, 1908.
Adam K. Stricker, for the appellant.
Carl A. Hansmann, for the respondent.
The defendant appeals from an order denying his motion for the resettlement of an order granting to plaintiff an inspection of his books and papers. The facts are not in dispute. When the motion came on for argument the defendant raised certain preliminary objections based upon the alleged insufficiency of the moving papers. At first the court was of opinion that some of these objections were well taken, but upon further argument overruled them and granted the motion. These objections were not recited in the order granting the motion, and the defendant, by the motion which has been denied, seeks a resettlement of the order by the insertion therein of the preliminary objections. We are of opinion that the motion for resettlement should have been granted. If the defendant should desire to appeal he would be entitled to have his preliminary objections considered, and he might be unable to do so unless it appears from the order that the objections were duly taken at the proper time. ( Mix v. Andes Ins. Co., 74 N.Y. 53; Matter of National Gramophone Corporation, 82 App. Div. 593.)
It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for resettlement granted.
INGRAHAM, McLAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.