Poole v. Means — 144 A.D. 155

Majority

p. 155

Edith Catherine Poole, Respondent, v. Gaston Bullock Means, Appellant.

First Department,

April 7, 1911.

Headnote

Discovery — examination of plaintiff before trial—breach, of promise to marry.- -

Where in an action for breach of promise to marry the answer sets forth as affirmative defenses acts of plaintiff, which, if proved, would constitute at least a partial defense, the defendant is entitled to examine her before trial to establish the facts alleged.

Appeal by the defendant, G-aston Bullock Means, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 9th day of March, 1911.

Alfred W. Haywood, Jr., for the appellant.

Alex L. Strouse, for the respondent.

Appeal from an order vacating an order for the examination of plaintiff before trial.

The action is for damages for the breach of a promise to marry. The defendant by way of affirmative defenses sets forth certain acts alleged to have been committed by plaintiff which, if proven, will probably constitute at least a partial defense to her cause of action. These acts defendant will be entitled to prove upon the trial, and the plaintiff is certainly a competent witness to prove them. We think that defendant was entitled to examine her before trial tó establish the facts which he alleges in defense.

The order appealed from must be reversed and the motion denied. The date for the examination to. proceed will be inserted in the order, which must be settled on notice.

Ingraham, P. J., McLaughlin, Miller and Dowling, JJ., concurred. •

Order reversed and motion denied; date for examination to be fixéd on settlement of order. Settle order-on notice,