Currie v. Sprague — 131 N.Y.S. 325

Majority

p. 325

CURRIE et al. v. SPRAGUE.

(Supreme Court, Appellate Division, First Department.

October 20, 1911.)

Headnote

Discovert (§ 40*)—Examination Before Trial.

An order for defendant’s examination before trial as a witness on matters necessary to sustain plaintiff’s cause of action does not prejudice defendant, as permitting cross-examination before trial concerning his affirmative defense and counterclaim..

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

Appeal from Special Term, New York County.

Action by Frederick Currie and others, partners as Currie & Boyce, against Frank J. Sprague. From an order vacating an order for defendant’s examination before trial, plaintiffs appeal. Reversed, and order for examination reinstated.

See, also, 139 App. Div. 905 , 123 N. Y. Supp. 1113 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and MILLER, JJ.

Walter W. Irwin, for appellants.

Simpson, Werner & Cardozo (Benjamin N. Cardozo, of counsel), for respondent.

. 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:

“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 ini 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 and numerous decisions made by this, court.

The order appealed from should be reversed, with $10 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. All concur.