Majority
p. 921Genevieve C. Skelly and Others, as Executors, etc., of Patrick Skelly, Deceased, Respondents, v. Mary A. Mortimer, Appellant.
Headnote
Sale—payment—burden of proof.Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 20th day of November, 1912, denying a motion to vacate an order for her examination before trial and from an order entered on the 29th day of November, 1912, resettling said order.
The action is for goods, wares and merchandise sold. The answer, in addition to general and specific denials, pleads payment. This is an affirmative defense, the burden of proving which rests on defendant. No reason is apparent why plaintiff should examine defendant unless it be to ascertain how she intends to prove her defense. Orders for examination are not granted for this reason alone. The order appealed from should be reversed, with ten dollars costs and disbursements, and motion to vacate granted, with ten dollars costs. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. _