Gray v. Baker — 52 N.Y. St. Rep. 604

Majority

p. 604

Leonora S. Gray, Resp't, v. William T. Baker et al., App'lts.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

Depositions—Examination before trial—Libel.

An order for the examination of the plaintiff in an action of libel should not be granted for the purpose of enabling the defendant to prepare his answer, to consist of a general denial and the truth of the alleged libelous matter.

Appeal from order vacating an order for the examination of plaintiff before trial.

Action for libel imputing unchastity to plaintiff. The order for examination of plaintiff was procured to enable defendants to prepare their answer, the affidavit stating that the defense desired to be interposed was “ a general denial and the truth of the alleged libelous matter, if they shall be able to interpose such defense.”

Henry F. & James Coupe, for app’lts; David J. Newland, for resp’t.

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, 48 St. Rep., 146 , 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.

Dykman and Pratt, JJ., concur.