Currie v. Sprague

The respondent urges that this order should be affirmed upon the ground that the plaintiffs do not seek this examination in good faith and that the real purpose is to obtain a cross-examination of the defendant before trial, respecting his affirmative defense and counterclaim in which it is alleged u that the pretended statement of account* * * referred to in the complaint is fictitious, false and fraudulent.” Defendant’s fear is not well founded. The order for the examination provides for the taking of defendant’s testimony as a witness in behalf of the plaintiffs concerning the matters set forth in the annexed affidavit. The .affidavit is confined to the affirmative matters necessary to sustain the plaintiffs’ cause of action. In no event under this order could the examination be extended so as to compel the cross-examination of the defendant regarding his affirmative defense and counterclaim. The order for the examination is in conformity with the provisions of the Code^[1] and numerous decisions made by this court. The order appealed from should be reversed, with ten dollars costs and disbursements, and the order for the examination reinstated, the date of said examination to be fixed upon the settlement of the order to be entered hereon. Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred. Order reversed, with ten dollars