Safir Plan, Inc., Respondent, v. American Supercraft Corporation, Appellant

(October 10, 1950.) Safir Plan, Inc., Respondent, v. American Supercraft Corporation, Appellant. [MAJORITY] The orders appealed from, adjudging defendant in contempt, and striking out its answer and awarding judgment to plaintiff as upon default on account of defendant’s refusal to produce books and records for use upon plaintiff’s examination of defendant before trial, unanimously reversed, with $20 costs and disbursements to the appellant, and plaintiff’s application to punish defendant for contempt of court denied. This disposition of the appeal is made without prejudice to an application by plaintiff to examine defendant, accompanied by production of books and records pursuant to section 296 of the Civil Practice Act, in relation to defendant’s counterclaims, which seek, among other matters, to recover damages against plaintiff by reason of outlays claimed to have been made by defendant in the preparation of these goods for delivery to plaintiff, through transactions with processors, and in other respects. Objection could no longer be made to such an examination upon the ground that it pertains to defendant’s affirmative case (Borros, Inc., v. Borros Bros., 274 App. Div. 11). Settle order on notice. Present — Glennon, J. P., Dore, Cohn, Van Voorhis and Shientag, JJ.