Poole v. Meass — 128 N.Y.S. 751

Majority

p. 751

POOLE v. MEASS.

(Supreme Court, Appellate Division, First Department.

April 7, 1911.)

Headnote

Discovery (§ 40^[1] )—Examination of Plaintiff Before Trial.

In an action for breach of marriage promise, where defendant by way of affirmative defenses set up certain acts alleged to have been committed by plaintiff, which, if proved, would probably constitute at least a partial defense to the cause of action, and which defendant would be entitled to prove upon the trial, defendant is entitled to examine plaintiff before trial to establish such facts; she being a competent witness to prove them.

[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 53; Dec. Dig. § 40.^[1] ]

Appeal from Special Term, New York County.

Action by Edith Catherine Poole against Gaston Bullock Meass. From an order vacating an order for examination before trial, defendant appeals.

Reversed, and motion denied.

Argued before INGRAHAM, P. J., and McLAUGHRIN, SCOTT, MILLER, and DOWLING, JJ.

Alfred W. Haywood, Jr., for appellant.

Alex L. Strouse, for 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, to 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. All concur.