Koppel v. Hatch

50 Misc. 626, 98 N.Y.S. 619

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1906
• Status: Published

Opinion

Per Curiam.

The affidavit presented by the plaintiff on the application for an order to compel the plaintiff to appear for examinátion complied with the statute and showed that the information sought by the defendant was material and necessary. In the language of the Appellate Division in Kramer v. Kramer, 70 App. Div. 615: “It is evident that the testimony of the plaintiff in view of the peculiar circumstances surrounding the execution and delivery of the note, is material and necessary to the defense in this action * * *. The facts as to how the plaintiff became possessed of the note and the consideration, if any, that she paid therefor are peculiarly within the knowledge of the plaintiff, and upon such subject the defendant must be presumed to be absolutely ignorant. It devolves upon him to show that the plaintiff is not a bonafide holder of the note, and it is quite likely that he can only show such fact by an examination of the plaintiff.” In order to show that plaintiff is not such a bona fide holder he must allege that fact in the answer.

The order appealed from is reversed, with costs and disbursements.

. Present: Scott, Tbuax and Bischoee, JJ.

Order reversed, with costs and disbursements.