Sociètè Anonyme des Glaces Nationales Belges, Respondent, v. Jacques Kahn, Appellant

Sociètè Anonyme des Glaces Nationales Belges, Respondent, v. Jacques Kahn, Appellant. First Department, June 5, 1908. Order — reel tais — preliminary objections. An order granting an inspection of books and papers should be resettled so as to recite preliminary objections as to the sufficiency of the moving papers raised by the defendant, so that he may have the benefit thereof in case of appeal. Appeal by the defendant, Jacques Kahn, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 12th day of May, 1908, denying the defendant’s motion to resettle an order entered herein on the 4th day of May, 1908. Adam K. Stricker, for the appellant. Carl A. Hansmann, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The defendant appeals from an order denying his motion for the resettlement of an order granting to plaintiff an inspection of his books and papers. The facts are not in dispute. When the motion came on for argument the defendant raised certain preliminary objections based upon the alleged insufficiency of the moving papers. At first the court was of opinion that some of these objections were well taken, but upon further argument overruled them and granted the motion. These objections were not recited in the order granting the motion, and the defendant, by the motion which has been denied, seeks a resettlement of the order by "the insertion therein of the preliminary objections. We are of opinion that the motion for resettlement should have been granted. If the defendant should desire to appeal lie would be entitled to have his preliminary objections considered, and he might be unable to do so unless it appears from the order that the objections were duly taken at the proper time. (Mix v. Andes Ins. Co., 14 N. Y. 53; Matter of National Gramophone Corporation, 82 App. Div. 593.) It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for resettlement granted. Ingeaham, McLaughlin, Claeke and Houghton, JJ., concurred.' Order reversed, with ten dollars costs and disbursements, and motion granted.