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R. F. Conway Co. v. Cumisky

158 N.Y.S. 334 Court N.Y. App. Div. Decision date 1916-04-14 English

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p. 334
R. F. CONWAY CO. v. CUMISKY.
(Supreme Court, Appellate Division, First Department.
April 14, 1916.)

Headnote

Discovery <@=38 — Examination of Defendant — Counterclaim — When Proper.
An order for examination of defendant before trial will be vacated, where the examination desired is not to secure evidence to support the petition, but is as to matters concerning an affirmative counterclaim.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 51; Dec. Dig. " <@=38J
Appeal from Special Term, New York County.
Action by the R. E. Conway Company against Eugene Cumisky. From an order denying motion to vacate an order for examination of defendant before trial, defendant appeals.
Reversed, and motion granted.
Argued before CLARKE, P. J., and LAUGHLIN, DOWLING, PAGE, and DAVIS, JJ. •
Walter E. Ernst, of New York City, for appellant.
Bernard A. Shalelc, of New York City, for respondent.

The examination required is not for the purpose of obtaining testimony to support the plaintiff’s case, but to examine into the defendant’s affirmative counterclaim. The order is therefore reversed, with $10 costs and disbursements, and the motion to vacate order for examination granted, with $10 costs. Order filed.