
    In the Matter of the Application of David A. Schulte, Petitioner, Appellant, for an Order Pursuant to Article 78 of the Civil Practice Act to Compel Performance of Certain Acts, against Asbestos Limited, Incorporated, Respondent.
    First Department,
    November 1, 1940.
    
      
      Walter H. Liebman of counsel [D. William Leider and Harold I. Cammer with him on the brief; Liebman, Robbins, Pressman & Leider, attorneys], for the appellant.
    
      Harold P. Seligson of counsel [Harry L. Osterweis with him on the brief; Marshall, Bratter & Seligson, attorneys], for the respondent.
   Per Curiam.

We think that Special Term should have granted a peremptory order permitting the petitioner an examination of the books of the respondent corporation. In spite of the affirmative allegations in the answer, that petitioner was seeking an inspection for an ulterior purpose, the conceded facts appear sufficient to establish the right of the petitioner as a matter of law to obtain the order sought. (See Matter of Durr v. Paragon Trading Carp., 270 N. Y. 464, 471.) We find no triable issue of fact which it is necessary to have determined in order to pass on the right to the examination.

The order, so far as appealed from, should be reversed, with twenty dollars costs and disbursements, and the motion for a peremptory order as prayed for in the petition granted.

Present — Martin, P. J., OMalley, Townley, Dore and Callahan, JJ.

Order, so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements, and the motion for a peremptory order as prayed for in the petition granted. Settle order on notice.  