Opinion
January 19, 1971
Order, Supreme Court, New York County, entered on March 31, 1970, so far as appealed from, denying motion to review and vacate Referee's order directing discovery and inspection of parties' income tax returns, unanimously modified, on the law and the facts, to the limited extent of deleting the restriction insofar as it pertains to the returns of the plaintiff, Arthur A. Puro, and otherwise affirmed. Appellant shall recover of respondent one bill of $30 costs and disbursements. The point of the defendant is well taken: the limitation presently obtaining as to the plaintiff's returns, restricting examination to income "that would indicate there is a partnership", unfairly restricts the defendant to discovery of facts consistent with plaintiff's complaint, and conversely prevents defendant from ascertaining failure, if any, of plaintiff to state partnership income, a fact tending to establish "no partnership ever existed", which is the defendant's defense, and which he should be free to establish. Appeal from order, Supreme Court, New York County, entered on April 29, 1970, insofar as it denied defendant's motion to modify the order entered on March 31, 1970, dismissed, without costs and without disbursements.
Concur — McGivern, J.P., Nunez, McNally and Steuer, JJ.