Sunnydale Farms, Inc. v. Premium Dairy Co. , 180 N.Y.S.2d 663 ( 1958 )

In a proceeding pursuant to article 78 of the Civil Practice Act for an inspection of the records of a corporation, the corporation and its president by notice dated September 22, 1958 appeal from an order entered August 20, 1958 granting the application and from an order entered September 11, 1958 resettling the order entered August 20, 1958. Order entered September 11, 1958 modified by striking therefrom the ordering paragraph and by substituting therefor provisions that the order entered August 20, 1958 be vacated and that the motion for resettlement be dismissed. As so modified, order entered September 11, 1958 unanimously affirmed, with costs to abide the event, and proceeding remitted to the Special Term for a trial of the issues of fact, in accordance with section 1295 of the Civil Practice Act, as to the good faith of respondent and as to its purpose in seeking the inspection and for determination in the light of such proof. Respondent and the corporate appellant are competitors. The defense and facts set forth in the answering affidavit in support thereof that the application was motivated by a desire to obtain confidential information by a competitor for its own purposes, create an issue of fact which must .be resolved after a hearing (.Matter of Sehulman v. Dejonge é Co., 270 App. Div. 147; Matter of Breswiclc é Co. v. Greater N. Y. Inds., 308 N. Y. 1041). Appeal from order entered August 20, 1958 dismissed, without costs. The corporation and its president, having appealed from the order entered September 11, 1958, could not appeal from the order entered August 20, 1958. (Cf. Civ. Prae. Act, § 562-a; Matter of Knapp é French, 170 App. Div. 958.) Present — Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ.