Opinion
February 5, 1940.
In an action to recover damages for fraud, an order was made directing that defendants be examined before trial. In a prior action between the same parties, this court reversed an interlocutory judgment in favor of plaintiff and dismissed the complaint. ( Turecamo v. Frankel, 251 App. Div. 897; affd., 278 N.Y. 557.) In that action we made new findings, wherein it was found inter alia, that the syndicate, of which plaintiff was a member and defendants were syndicate managers, bought only stocks and bonds of the Warner-Quinlan Company and that they made only purchases of such securities and not sales thereof; that the defendants fully accounted to the plaintiff and all other members of the syndicate on October 29, 1929, for all acts and transactions done by them as syndicate managers; and that defendants also, in 1930, for a second time fully accounted to plaintiff for all their acts and transactions as syndicate managers. In view of the above findings and the other findings made in the prior action, it was an improvident exercise of discretion to grant plaintiff's motion for an examination of defendants before trial. Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Lazansky, P.J., Hagarty, Carswell, Johnston and Close, JJ., concur.