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Doernberg v. Inter-Ocean Transportation Co. of America, Inc.

159 N.Y.S. 3 Court Argued May term, 1916, Decision date 1916-05-16 English

Delivered by BIJUR, J.

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DOERNBERG v. INTER-OCEAN TRANSP. CO. OF AMERICA, Inc., et al.
(Supreme Court, Appellate Term, First Department.
May 16, 1916.)

Headnote

Discoveby <®=>40—Right to Examination—Affirmative Defense.
In 'an action on a note, examination of the defendant before trial as to matters in relation to his affirmative defense of usury, being merely a cross-examination in advance of trial, is improper.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 52, 53; Dec. Dig. <§=40.]
<§E5>For other cases see same topic & KEY-NUMBEIt in all Key-Numbered Digests & Indexes
Appeal from City Court of New York, Special Term.
Action by Walter S. Doernberg against the Inter-Ocean Transportation Company of America, Incorporated, and others. From an order denying defendant Bard L. Stafford his motion to limit ex-
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animation before trial by eliminating matters in relation to an affirmative defense, he appeals. Order reversed.
Argued May term, 1916,
before GUY, BIJUR, and COHALAN, JJ.
Louis E. Swarts, of New York City, for appellant.
Adolph Bangser, of New York City, for respondent.

This action is brought upon a promissory note, to which the defendant sets up as an affirmative defense that the note was usurious. Under these circumstances, the examination of the defendant as to this issue would be merely his cross-examination in advance of the trial, concerning the impropriety of which the authorities are too clear and too numerous to warrant citation.

The learned court below seems to have been of opinion that the order should be granted upon the authority of Schweinburg v. Altman, 131 App. Div. 795 , 116 N. Y. Supp. 318 ; but a careful reading of that case will disclose that the court permitted the examination of the defendant there, not to cross-examine him, nor to disclose his defense, “but to avoid it.” The defense was that the contract sued upon had been canceled. The court further said that plaintiff “seeks to show the alleged cancellation ineffective.” No such situation is disclosed in the case at bar.

Order reversed, with $10 costs and disbursements, and order for the examination of defendant appellant before trial modified, by excluding matters relating to his affirmative defense. All concur.