Opinion
May 26, 1937.
Present — Sears, P.J., Edgcomb, Crosby, Cunningham and Taylor, JJ.
Order modified and as modified affirmed, without costs. Memorandum: The production of books, papers and records cannot be compelled by notice. It must be done by order (Civ. Prac. Act, § 296), and the order herein was only one passing upon the validity of the notice, and vacating parts thereof. The subjects of the examination set forth in paragraphs 5 and 6 of the notice might seem to relate to matters of defense but, in his first cause of action, as alleged in paragraph 3 of the complaint, plaintiff conditions his right to recover upon his work being "all right" and, therefore, has assumed the burden of proof as to the quality of his work. All concur. (The order vacates a part of a notice of examination before trial and directs the examination of an officer of defendant corporation in an action for breach of contract.)