Prieston v. Nea Service, Inc.
| Decision Date | 03 June 1960 |
| Parties | Sam PRIESTON, Deems Prieston, Tom Prieston, John Prieston and George Prieston, Partners, D/B/A Prieston Engraving Co., and Prieston Photoengraving Co., Plaintiffs, v. NEA SERVICE, Inc., Defendant. |
| Court | New York Supreme Court |
Milton S. Zeiberg, New York City, for plaintiffs.
DeWitt, Nast & Diskin, New York City, for defendant.
Plaintiffs move for discovery and inspection pursuant to section 324 of the Civil Practice Act, and rule 140 of the Rules of Civil Practice. In their first cause of action, plaintiffs requested the rescission of a contract which covered the sale by defendant to plaintiffs of a certain photoengraving machine. Plaintiffs alleged as grounds for such a rescission, inter alia, that the machine contained latent defects and that defendant had falsely represented to plaintiffs that the process utilized by the machine was the exclusive property of the defendant, that the title was protected by a United States patent or patents, and that plaintiffs would freely be able to use the machine without having to pay any royalties or other fees. Certain exhibits, made a part of the complaint, indicated that demands actually were made upon plaintiffs by an independent company (The Wire Coating and Mfg. Co. of Cleveland, Ohio) requiring them to pay royalties for the continued use of the process, under certain patent rights claimed by said independent company. To the plaintiffs' charges, defendant interposed a general denial, which has effectively put the aforesaid allegations in issue.
Plaintiffs have concluded an examination before trial of defendant by one of its salesmen. Said salesman testified vaguely as to patent conflicts between the defendant and the said Wire Coating and Mfg. Co., but failed to produce any books or records relevant to the inquiry. Plaintiffs now state that such examination has proven inadequate (Battaglia v. N. Y. City Transit Authority, 2 A.D.2d 985, 157 N.Y.S.2d 797). They request a discovery and inspection of all documents, papers, records, etc., bearing upon: (1) 'any and all applications for chemical patent or patents of the process or processes utilized in the Acme One-Bite Etching machine sold by the defendant to the plaintiffs herein, as well as any applications for patent or patents with respect to and bearing upon the mechanical features of the aforesaid machine'; (2a) 'U. S. Patent No. 2,701,186, 'Method of Making Photo-Engraving Plate"; and (2b) the aforesaid patent, 'by and between The Wire Coating & Mfg. Company or defendant as assignee, and Robert H. Hendrich and Dudley L. O'Brien Jr., as assignors', together with all records as to business transactions, claims and litigation by and between the defendant and the patent assignors.
Discovery and inspection will be allowed where there is a showing that the records desired are in the custody or control of the party specified (Goldstein v. Kaye, 2 A.D.2d 889, 156 N.Y.S.2d 238); that they are relevant to particular issues in the case (Paliotto v. Hartman, 2 A.D.2d 866, 156 N.Y.S.2d 220); and that they will be admissible in evidence on trial (Milberg v. Lehrich, 2 A.D.2d 860, 156 N.Y.S.2d 72). The documents requested for inspection must be related to the merits of the action (Civ.Prac.Act, § 324). Upon the issues of the case herein, plaintiffs have a right to learn whether...
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