Hunt Foods, Inc. v. Basinait

Appeal from an order of the Supreme Court at Special Term, entered March 21,1957, in Orleans County, which granted a motion by respondent for an order vacating a notice given by appellants demanding an examination before trial of respondent.

Memobandum by the Court. The taxing authorities of the Town of Albion, Orleans County, New York, seek to examine the respondent, Hunt Foods, Inc., and two of its named employees pursuant to section 288 et seq. of the Civil Practice Act in respect to the purchase by it of the property involved in the instant tax proceeding from General Foods, Inc., all agreements with General Foods, Inc., pertaining to said sale, any and all agreements with General Foods, Inc., relating to the manufacture of any product for it by Hunt Foods, Inc., and all agreements with the New York Central Railroad Company bearing on the cost of materials and labor used in coneieetion with the institution of any side tracks servicing the industry and requiring the production of all relevant papers and records relating to the subject matter upon which examination is sought. Relator resists the examination and moves to vacate the notice of examination. The Special Term, while recognizing the materiality of the information sought, vacated the notice of examination upon the ground that it was not necessary prior to trial. The record discloses that the property in question, together with other real estate located in Fairmount, Indiana, was acquired from General Foods, Inc., for $500,000 as part of a transaction whereby Hunt Foods, Inc., also acquired Snider trade-mark and trade name for $725,000. We feel that under the peculiar circumstances disclosed concerning the acquisition of the property in question, the appellant tax authorities have shown “ special circumstances” justifying the right to examine before trial. For the reasons indicated we reject respondent’s contention that the provisions of section 27 of the Tax Law, and article 13 are exclusive and that the examination sought is not authorized. The order should be reversed and the examination directed to proceed before a referee named in the-notice of examination at a time and place to be agreed upon by the parties.