Carney v. Liebmann Breweries, Inc.
| Decision Date | 25 September 1957 |
| Citation | 8 Misc.2d 1064,167 N.Y.S.2d 620 |
| Parties | Florence E. CARNEY and William J. Carney co-partners doing business under the firm name of Carney's Bar & Restaurant, Plaintiffs, v. LIEBMANN BREWERIES, Inc., Jacob Ruppert, The F. & M. Schaefer Brewing Co., Piel Bros., P. Ballantine & Sons, G. Krueger Brewing Co., Metropolitan Brewers Institute, and New York State Liquor Authority, Defendants. |
| Court | New York Supreme Court |
Cohen & Sheen, New York City, for plaintiffs.
Liebman, Eulau & Robinson, New York City, for defendant Liebmann Breweries, Inc.
Mahoney, Spohr & Mahoney, New York City, for defendant Jacob Ruppert.
Alvin E. Heutchy, and Dwight, Royall, Harris, Koegel & Caskey, New York City, for defendant Schaefer Brewing Co.
Sullivan & Cromwell, New York City, for defendant Piel Bros.
Gallop, Climenko & Gould, New York City, for defendant Ballantine & Sons.
Guggenheimer & Untermyer, New York City, for defendant Krueger Brewing Co.
Clark, Fox & LaGuardia, New York City, for defendant Metropolitan Brewers Institute.
James V. Hayes, Breck P. McAllister, Francis M. Cryan, New York City, for above defendants.
On this motion the plaintiffs request an examination before trial of the defendants, together with the production of books and documents and further seek an order vacating or modifying several demands for bills of particulars, or if not vacated, that said bills be served after the plaintiffs have completed their examinations of the defendants.
In opposition thereto one of the defendants, Piel Bros., objects on the ground that the branch of the motion to vacate or modify is untimely as to them because they had refused to extend the time by stipulation; the other defendants do not urge this as they had consented to extensions of time. This contention of Piel Bros., predicated on the timeliness of the plaintiffs' motion to vacate or modify the demand in the bill, is rejected.
By cross-motions, the defendants ask for an examination before trial of the plaintiffs, prior to their examination before trial of the defendants, but after service of the bills of particulars by plaintiffs.
In general opposition to plaintiffs' motion, the defendants argue that all of plaintiffs' objections to defendants' demands for particulars should be overruled, that plaintiffs be required to serve their bills prior to any examinations before trial, and that the defendants are entitled to priority of examinations in these cases. While the plaintiffs have challenged the propriety of various items of the demands for particulars and the requested examinations, the defendants have not questioned items, but do assert that the entire examinations of them should be denied.
The action on which these motions and cross-motions are based charges a violation of section 340 of the General Business Law. It is alleged that six of the defendants, brewers of beer, entered into an arrangement to form an organization, the seventh defendant, Metropolitan Brewers Institute, to fix prices in restraint of trade and monopoly; injunctive relief and damages are demanded. The defendants deny the material allegations, particularly as to the alleged price-fixing arrangement, and set up defenses consisting of the statute of limitations.
Rule XI, paragraph 8, of the New York County Supreme Court Rules states 'Where a party to be examined has made a timely demand or motion after joinder of issue for a bill of particulars, the party seeking the examination will generally be required to serve his bill of particulars before proceeding with the examination of the adverse party.' It is recognized this is subject to the discretion of the court, and may for good cause be disposed of otherwise. The amended complaint, which has successfully withstood attack by the defendants, contains 29 paragraphs and nine demands for judgment. The defendants' answers contain fifteen paragraphs, and each has six separate and partial defenses. The individual demands for bills of particulars contain from 13 to 19 items with as many as 7 subdivisions, in all a total of approximately 225 items.
The plaintiffs have asked for an examination of all defendants as to 31 items and argue that the items are material and necessary due to the nature of the case, i. e., illegal monopoly, knowledge of which is allegedly within the singular possession of the defendants and of which the plaintiffs have no information. The defendants state that after exhaustive investigations, there is no basis for the charges made in the complaint and that the defendants have no facts within their knowledge concerning said charges. They do not question the individual items of the examination except to state in their brief that items A, B, and C, relating to the production of papers, indicate a 'fishing expedition', as they...
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...the Bill of Particulars. (Lesser v. Kennedy, 19 Misc.2d 812; Rico v. Pierleoni, 33 Misc.2d 955, 226 N.Y.S.2d 309; Carney v. Liebmann Breweries, 8 Misc.2d 1064, 167 N.Y.S.2d 620). Under proper circumstances the Bill of Particulars may be The question of the basis for the claimed negligence i......
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