Opinion
279 A.D. 1029 112 N.Y.S.2d 6 LORA T. MCCABE, Appellant, v. JAMES A. MCCABE, Respondent. Supreme Court of New York, Second Department. April 21, 1952
In an action for separation, an order was entered directing the defendant to appear for examination as to his means and to produce for inspection and discovery his books and records. He defaulted in appearance on the examination and his answer was ordered to be struck out unless he submitted to the examination within ten days. He failed to submit to the examination and judgment was entered on his default awarding the plaintiff $300 a week alimony. Thereafter the defendant moved to set aside the order which struck out his answer and to open his default in appearance on the examination and in appearance on the hearing to fix alimony. The motion was granted on the condition, among others, that the defendant should submit to the examination in accordance with the order therefor and in the event of his failure so to do his motion was denied. Defendant appeared for the examination and produced some books and papers but failed to produce any in connection with an undertaking business, claiming his mother was the owner of the business and controlled the books and papers. Plaintiff appeals from an order which denied a motion by which plaintiff sought, in effect, to have added to the order opening the default on condition a provision that the motion is denied for failure to produce the books and records of the undertaking business. Order reversed on the law and the facts, with $10 costs and disbursements, and motion granted, without costs. The mother of defendant admitted that he could withdraw whatever he wanted from the joint accounts in his and her name. When he moved to open his defaults he swore the undertaking business was his. His income tax reports stated she was his dependent. In his 1949 Federal income tax report he claimed ownership of the business. In his applications to the State Health Department for renewal of licenses, he stated not only that he was manager of 'The Abbey' but also that was the name of a firm. In some applications he stated he conducted the establishment in his own name. In a contract executed by the defendant and his mother, it is recited that they were the partners in the conduct of the business. The mother filed no applications for renewal of licenses or any income tax reports. The implied finding of the Official Referee that the mother was the sole owner of the business and solely controlled its books and records is contrary to the weight of the documentary and oral proof.
Nolan, P. J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.