Meredith v. Dodd — 145 N.Y.S. 662

Majority

p. 662

MEREDITH v. DODD.

(Supreme Court, Appellate Division, First Department.

January 30, 1914.)

Headnote

Discovery (§ 38*)—Examination of Plaintiff Before Trial. The burden of proving want of consideration being upon defendant, he had the right to examine plaintiff as a witness before trial.

[Ed. Note.—For other cases, see Discovery, Cent Dig. § 51; Dec. Dig. § 38.*]

Appeal from Special Term, New York County.

Action by Thomas W. Meredith against Joseph M. Dodd. From an order vacating an order for examination of plaintiff before trial, defendant appeals. Reversed.

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

Frederic C. Pitcher, of New York City, for appellant.

David B. Luckey, of New York City, for respondent.

The burden of proving his allegation of lack of consideration is on the defendant, and he has the right to examine the plaintiff to prove such affirmative defense.

The order appealed from is therefore reversed, with $10 costs and disbursements, and the motion to vacate the order for plaintiff’s examination denied, with $10 costs; the date for the examination to be fixed in the order.