Zeitz v. Cook

Order vacating order for examination before trial reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Tbe affirmative defense is a legitimate ground to examine a plaintiff before trial. Plaintiffs' relation to this bond and mortgage necessarily implies that tbey know how they took It with the guaranty, and hence that a plaintiff can give testimony that is material upon tbe issue whether or not tbey made it a cover for a usurious loan to the mortgagor. Anderson v. Lisman, 130 App. Div. 134 , 114 N. Y. Supp. 343 . The grounds shown for such axamlnatioa were sufficient. Tisdale Lumber Co. v. Droge, 147 App. Div. 55 , 131 N. 1. Supp. 633; Continental Securities Co. v. Belmont, 147 App. Div. 113 , 131 N. Y. Supp. 713 ; Poole v. Means, 144 App. Div. 155 , 128 N. Y. Supp. 751 .