Lewis v. Healy — 157 N.Y.S. 131

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p. 131

LEWIS v. HEALY.

(Supreme Court, Appellate Division, First Department.

January 28, 1916.)

Headnote

Discoveby <S=»36—Examinations Befobb Tkiae—Scope.

An order for examination of plaintiff before trial should not be granted, where it is sought, not for the purpose of proving facts in defense, but to examine plaintiff as to the elements of his cause of action.

FEd. Note.—For other cases, see Discovery, Cent. Dig. § 49; Dec. Dig. <S^>36.]

Appeal from Special Term, New York County.

Action by Herbert Lewis against Joseph Hcaly. From an order denying a motion to vacate an order for examination of plaintiff before trial, plaintiff appeals. Order reversed, and motion granted.

Argued before CLARKE, P. J., and SCOTT, DOWLING, SMITH, and PAGE, JJ.

<S^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

p. 132

Otto C. Sommerich, of New York City, for appellant.

John F. Conway, of New York City, for respondent.

We think that the order for the examination was sought, not for the purpose of proving facts in defense, but in order to examine the plaintiff as to the necessary elements of his cause of action.

The order should therefore be reversed, with $10 costs and disbursements, and the motion to vacate the order for examination granted, with $10 costs.