Opinion
May 13, 1942.
Upon reargument of the appeal herein [ 263 App. Div. 208; Id. 767; Id. 1028], the order directing the examination before trial of officers and employees of the defendant is modified by eliminating therefrom any reference to the servant, agent and/or employee of the defendant who it is alleged called at the M.M. Motor Sales, Inc., of Norwich, N.Y., and talked with the plaintiff in the spring of 1933, and also by eliminating any reference to any records, sketches or communications alleged to have been received by the defendant from such employee. To that end paragraph 7 of the order appealed from, which was affirmed by this court without modification, should be amended to read as follows: "7. Plaintiff may examine defendant with regard to whether or not the sketches, notes, memoranda, communications and writings claimed by the plaintiff to have been secured by E.J. Detmold on or about July 11, 1934, and by David Neill on or about February 13, 1935, or either of them, relating to the devices, creations, methods and/or inventions of the plaintiff, mentioned and described in the amended complaint, were communicated by letter, telegraph, memorandum, orally or otherwise to the defendant at its main office in the State of Michigan, or its branch office in the City of Buffalo, or its branch office at Green Island, N.Y., or to any other office or official of the defendant." With this modification the previous decision of this court is reaffirmed, without costs, except as to the date of the examination. It now appears that the defendant is exclusively engaged in the production of vital war material and that an examination at this time of its officers and employees might disrupt and seriously impair this production. The exigencies of a private lawsuit must yield to the larger exigencies of public welfare. Therefore, the date of the first examination is fixed as of November 16, 1942, at the same hour and location as mentioned in the previous order. If conditions so dictate, and counsel are so advised, either party may apply to this court; or to the presiding justice thereof, upon five days' notice, for a further amendment of the order with relation to the time and place of the first examination. Hill, P.J., Crapser, Heffernan, Schenck and Foster, JJ., concur.