Edstrand Brothers v. Hagedorn & Company

Order entered on October 6, 1961 granting in part a motion for discovery and inspection of documents, unanimously modified, on the law and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, to grant the motion in its entirety. The court passes on the issue tendered by the parties, limited as it was to the relevancy and materiality of the documents for which discovery was sought. At this stage of the proceedings and in the present status of the pleadings relevancy and materiality are established sufficiently to entitle defendant to discovery. Plaintiff's reliance upon Feuer v. Menkes Feuer, Inc. (8 A.D.2d 294) is misplaced. That case, and the principles restated in it, involved, and were said to involve, a contract of indemnity and a pending litigation in which the indemnitor was given notice and an election to defend. While it is true that in non-contractual indemnity relationships there is occassional right to fix the indemnitor's obligation by notice of pending litigation, especially in cases of vicarious liability, the applicability of such principles is yet to be established in this case (1 Freeman, Judgments [5th ed.], 444 et seq., but especially 448, second and third unnumbered paragraphs). On that the court does not now pass, nor should it. Consequently, it suffices for the purpose of the present appeal that the only ground upon which the relevancy and the materiality of the requested documents has been questioned is not persuasive. Settle order on notice.