Albert Hubschman, as Assignee of Schatzkin Trading Corporation, Appellant, v. George Hornstein and Another, Individually and as Copartners, Doing Business under the Firm Name and Style of Hornstein & Hornstein, and Others, Respondents

Albert Hubschman, as Assignee of Schatzkin Trading Corporation, Appellant, v. George Hornstein and Another, Individually and as Copartners, Doing Business under the Firm Name and Style of Hornstein & Hornstein, and Others, Respondents. First Department, June 21, 1934. Nahum A. Bernstein of counsel [Arnold M. Goldstein, attorney], for the appellant. Alfred J. Talley of counsel [James A. McKaigney, George D. Hornstein and Abraham Hornstein with him on the brief; Talley & Lamb and Hornstein & Hornstein, attorneys], for the respondents. [MAJORITY — Per Curiam.] Per Curiam. We are of the opinion that the application was not made in good faith. The complaint is very simple and covers but two and a half pages of the record. The failure to evidence good faith is shown in part by the notice of motion for the examination which contains 270 items, many of which are clearly without the slightest merit. The order should be affirmed, with twenty dollars costs and disbursements. Present — Finch, P. J., Merrell, Martin, O’Malley and Untermyer, JJ.; Finch, P. J., and Untermyer, J., dissent and vote for modification. [DISSENT — Untermyer, J.] Untermyer, J. (dissenting). In our opinion the objections urged by the defendants to the examination before trial are not tenable except the objection to the form, and in some instances to the scope, of the 270 items set forth in the notice of motion. The order appealed from should be modified to provide that the motion is denied without prejudice to a renewal thereof upon a notice of motion which shall state in proper form, and without unnecessary repetition, the matters concerning which the examination is sought, and as so modified afiirmed, without costs. Finch, P. J., concurs. Order affirmed, with twenty dollars costs and disbursements.