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Dobyns v. Commercial Trust Co.

64 N.Y.S. 554 Court General Term. Decision date 1900-05-01 English

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p. 554
DOBYNS v. COMMERCIAL TRUST CO.
(City Court of New York,
General Term.
May 1, 1900.)

Headnote

Examination befobe Tbiab.
An order tor the examination of defendant is properly refused, where the intent of plaintiff is to discover what evidence defendant has to maintain his defense, and to ascertain whether he has a cause of action.
Appeal from trial term.
Action by Robert R. Dobyns against the Commercial Trust Company. From an order denying an application by plaintiff, he appeals.
Affirmed.
Argued before FITZSIMORS, C. J., and CORLAR and O’DWYER, JJ.
Russell & Percy, for appellant-
Harwood R. Pool, for respondent.

We think that the order appealed from should be affirmed. Evidently plaintiff wishes to find out just what evidence defendant has to maintain its defense. Besides, it appears to us that he wishes to ascertain whether he really has a cause of action herein against defendant. All the testimony he is now seeking for may be obtained by him in the usual way upon the trial. We think he should not now be allowed to engage in a fishing excursion.

Order appealed from affirmed, with costs.