Opinion
February 18, 1941.
Order, on reargument, adhering to the original decision denying in part the plaintiff's motion for an examination of defendant before trial modified in the following particulars: (1) By directing that defendant be examined as to items numbered 18-38, inclusive, of the notice of motion, in addition to the items specified in the order appealed from; (2) by directing that the defendant produce upon such examination all books, papers and documents relevant to the said additional items; (3) by providing that all books, papers and documents specified in the order as modified shall be produced for the purposes specified in section 296 of the Civil Practice Act. As thus modified, the order, in so far as appealed from, is affirmed, without costs. We hold that the complaint states a cause of action to restrain a monopoly under section 340 Gen. Bus. of the General Business Law. In such an action evidence of the matters referred to in the disputed items is material in establishing an unlawful intent. ( People v. American Ice Co., 120 App. Div. 234; Gerseta Corporation v. Silk Association of America, 220 id. 302.) The additional books, papers and documents to be produced will be determined upon the settlement of the order to be entered herein. The appeal from the original order, dated September 13, 1940, is dismissed, without costs. Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur. Settle order on notice.