Auerbach v. Arluck Blanket Corp. , 277 A.D.2d 1117 ( 1950 )

Plaintiff in his first cause of action seeks to recover a balance due on the sale of goods to three defendants. In his second cause of action plaintiff seeks to recover the same amount from three other defendants, one of whom is respondent. The complaint alleges that the defendants named in the first cause of action purchased the merchandise ostensibly for their own account, but actually as agents for the defendants named in the second cause of action, their undisclosed principals. By the third cause of action plaintiff alleges that defendants had and received ■ the above sum for the use and benefit of plaintiff. Plaintiff moved for the examination of all defendants before trial for the purpose of ascertaining the existing arrangement and agreement among them, about which he lacked knowledge. The motion was granted, but before the order was entered, respondent, whose answer denies all the material allegations of the complaint, moved for summary judgment. The motion was granted, with leave to plaintiff to move for an order permitting him to serve an amended complaint against respondent, “ provided the facts which plaintiff may acquire in the examination before trial of the other defendants are sufficient to substantiate an amended complaint * « Plaintiff appeals from the order and from the judgment entered thereon. Order and judgment reversed on the law and the facts, with $10 costs and disbursements, and the motion denied, without costs, and without prejudice to a renewal of the motion after the completion of the examination before trial of all defendants. The motion for summary judgment was prematurely granted in view of the previous order permitting plaintiff to examine all defendants, including respondent, for the purpose of ascertaining the facts with respect to the arrangement or agreement among defendants, as to which plaintiff lacked knowledge. The effect of the order and judgment appealed from is to preclude plaintiff from examining respondent and to overrule a decision of another judge of co-ordinate jurisdiction. Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.