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ROSE LA POTIN v. JULIUS LANG CO. (05/23/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


- decided: May 23, 1968.

ROSE LA POTIN, AS ADMINISTRATRIX OF THE ESTATE OF NATHAN W. LA POTIN, DECEASED, RESPONDENT,
v.
JULIUS LANG CO., INC., ET AL., APPELLANTS.

Order, entered August 30, 1967, unanimously reversed, on the law, without costs and disbursements, and motion for dismissal of complaint against the individual defendant, Julius Lang, granted, without costs and without disbursements, but without prejudice. Although the complaint alleges that the individual defendant was a party to the contracts for the sale of goods to plaintiff's intestate, the documents underlying the transactions are annexed to the complaint and establish that the sole contracting party was the corporate defendant. "Where a variance exists between the written contract and the conclusions drawn by the pleader, the writing must prevail over the allegations of the complaint." (Kuker v. Gates Container Corp., 263 App. Div. 1006, affd. 289 N. Y. 664; Red Robin Stores v. Rose, 274 App. Div. 462; Metcalf v. Metcalf, 274 App. Div. 744). Order, entered August 30, 1967, unanimously modified, on the law and the facts, to provide for the taking of the deposition before trial of the corporate defendant as to all matters material and necessary in the prosecution of the action, with the production by defendant of relevant records, books and papers for use pursuant to CPLR 3111 and, as so modified, order affirmed, without costs or disbursements. The defendant has admitted all the material allegations of the complaint except the failure or refusal to deliver the goods and the resulting damage. Accordingly, the examination should be limited to the procuring of testimony bearing on the issues so raised. Likewise, the books, papers, etc., to be produced at the examination, should be limited to those items germane to the issues includable in the examination. (See CPLR 3101; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3101.08; Shiek v. Cary, 2 A.D.2d 637; MB Steel Corp. v. United Steel Warehouse Corp., 23 A.D.2d 579.) Concur - Botein, P.J., Stevens, Eager, Tilzer and McNally, JJ.

19680523

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