Gray v. Baker — 23 N.Y.S. 387

Majority

p. 387

(69 Hun, 84.)

GRAY v. BAKER et al.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

Libel—Examination of Party before Answer.

Defendants, in an action for libel, cannot examine 'plaintiff, before answer, to ascertain if they can plead in justification, where the publication is based on facts that should have been known to defendants before the same was made. Miller v. Brooks, (Sup.) 20 N. Y. Supp. 359 , followed.

Appeal from special term, Kings county.

Action by Leonora S. Gray against William T. Baker and another for libel. From an order of the special term vacating an order obtained by defendants for the examination of plaintiff before answer, under Code Civil Proc. § 873, defendants appeal.

Affirmed.

For former report, see 19 N. Y. Supp. 940 .

Argued before BARNARD, P. J., and DYKMAN, J.

Henry F. & James Coupe, for appellants.

David J. Newland, for respondent.

The papers show that the defendants published of and concerning the plaintiff very injurious charges and imputations affecting her character for chastity. The publication is based upon allegations of fact which ought to have been known to the defendants before the publication was made. The defendants seek to examine the plaintiff before answer so as to determine from her examination whether the defendants will be able to answer that the libel published was true. The case of Miller v. Brooks, (Sup.) 20 N. Y. Supp. 359 , is a decisive authority against upholding an order for such purpose. The court in that case upheld an order vacating an order for the examination of a plaintiff before answer. The order appealed from should be affirmed, with costs and disbursements.