La Fourrure v. Newman

150 A.D. 920, 134 N.Y.S. 1087

Opinion

Scott, J.:

The plaintiff seeks the examination of defendant for the purpose of establishing the allegations of the amended complaint and reply. The burden rests upon it of proving these allegations and it is entitled to do so by any legal evidence, including the testimony of the defendant, if the evidence can be extracted from him. It is no answer to say that the plaintiff can prove its allegations otherwise. It has the right to prove them by defendant, if it elects to do so. The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.