La Fourrure v. Newman — 134 N.Y.S. 1087

Majority

p. 1087

LA FOURRURE v. NEWMAN.

(Supreme Court, Appellate Division, First Department.

May 3, 1912.)

Headnote

Discovery (§ 37*)—Examination of Defendant.

Plaintiff has a right to examine the defendant to secure evidence to establish the allegations of his amended complaint and reply.

[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 50; Dec. Dig. § 37.*]

Appeal from City Court of New York, Special Term.

Action by La Fourrure against Abraham Newman. From an order vacating an order for the examination of the defendant, plaintiff appeals. Reversed.

Argued before INGRAHAM, P. J„ and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

Clarence M. Lewis, of New York City, for appellant.

Leo Wolfson, of New York City, for respondent.

The plaintiff seeks the examination of defendant for the purpose of establishing the allegations of the amended complaint and reply. The burden rests upon it of proving these allegations, and it is entitled to do so by any legal evidence, including the testimony of the defendant, if the evidence can be extracted from him. It is no answer to say that the plaintiff can prove its allegations otherwise. It has the right to prove them by defendant, if it elects to do so.

Order appealed from reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.