Lobo & Co. v. Contreras 7 A.D.2d 906

Order unanimously affirmed, with $20 costs and disbursements to the respondent, without prejudice to a new application by defendant to vacate the notice of examination as to the alleged agent, Francisco Blanco Galas, upon affidavits that unequivocally aver the absence of any agency. Section 288 of the Civil Practice Act permits an examination before trial of an adverse party or his “ agents or employees ”. It is plaintiff’s contention in this suit that defendant placed the orders here at issue through the agency of Francisco Blanco Galas. It was unnecessary, as a matter of pleading, for plaintiff to allege the making of the contract by an agent. Defendant’s denials of any agency, and Blanco’s affidavit to the same effect, are couched in ambiguous language. Therefore, upon the present record, Special Term was correct in denying the motion to vacate the' notice of examination. If indeed, as defendant vaguely intimates, Blanco had no connection with the matter in suit as defendant’s agent, defendant may make a new motion to vacate upon affidavits which unequivocally set forth the facts regarding the absence of any agency. In other respects, the order below was a proper exercise of discretion which we would not disturb. Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and McNally, JJ. •