
    Pepsi-Cola Company, Appellant, v. The Coca-Cola Company, Respondent.
    (Appeal No. 2.)
   On the court’s own motion and on the consent of the parties the decision of this court handed down February 18, 1941 [ante, p. 927], is amended to read as follows: Order dated September 13, 1940, denying in part the plaintiff’s motion for an examination of defendant before trial modified in the following particulars: (1) By directing that defendant be examined as to items numbered 18-38, inclusive, of the notice of motion, in addition to the items specified in the order appealed from; (2) by directing that the defendant produce upon such examination all books, papers and documents relevant to said additional items; (3) by providing that all books, papers and documents specified in the order as modified shall be produced for the purposes specified in section 296 of the Civil Practice Act. As thus modified, the order, in so far as appealed from, is affirmed, without costs. We hold that the complaint states a cause of action to restrain a monopoly under section 340 of the General Business Law. In such an action evidence of the matters referred to in the disputed items is material in establishing an unlawful intent. (People v. American Ice Co., 120 App. Div. 234; Gerseta Corporation v. Silk Association of America, 220 id. 302.) The additional books, papers and documents to be produced will be determined upon the settlement of the order to be entered herein. The appeal from the order entered on the motion for reargument is dismissed, without costs. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur. Settle order on notice.  