Immig v. Haesloop — 14 N.Y.S. 638

Majority

p. 638

Immig v. Haesloop.

(City Court of Brooklyn, General Term.

May 26, 1891.)

Headnote

Discovery— Examinaton of Adverse Party before Triad.

An order for the examination of plaintiff before trial, in order to enable defendant to prepare his answer and prove his defense, should not be granted, where defendant’s affidavit shows that the answer will be a general denial.

Appeal from trial term.

Action by August Immig against John Haesloop. A motion to,vacate an order for the examination of plaintiff before trial was denied, and plaintiff appeals.

Argued before Clement, C. J., and Osborne, J.

Ayres & Walker, for appellant. Barnum & Rebhann, for respondent.

This is an appeal from an order denying a motion to vacate a prior order for the examination of the plaintiff before trial. The application for the examination was made by the defendant before issue was joined, in order to prepare his answer, and to prove his defense. It is apparent, from •the affidavit of the defendant, that the answer will be a general denial, "and that any information given by the plaintiff will in no wise help him in preparing his answer. If the defendant desired a statement of the account, he could obtain a bill of particulars. We think that the application was premature, and that the examination was not necessary. Order reversed, with $10 costs and disbursements, and motion granted.