Reusens v. Arkenburgh

136 A.D. 653, 121 N.Y.S. 353, 1910 N.Y. App. Div. LEXIS 102

Opinion

Miller, J.:

. This action is. brought to foreclose a mortgage. The complaint alleges that, by agreements of the parties each year, interest was added to • principal. The answer denies this, and the defendant wishes to examine the plaintiff for the purpose of ascertaining, as he says, so that he may prove the same upon the trial, whether the said agreements were in writing or were made orally. The attorney for-the defendant states in his affidavit that the examination is material and necessary to the defendant in order to enable him “ to properly prepare for the trial of this action and his defense therein.” The defendant says that he also desires to ascertain the items of compound interest included in the amount of the bond, to secure which the mortgage was given; but no issue is raised on that head.

It is obvious that the defendant desires to examine the plaintiff for the purpose of ascertaining what he will swear to on the trial, not to elicit testimony to establish an affirmative defense, or to rebut the plaintiff’s case. It is well settled that examinations will- not be allowed under such circumstance's. (Caldwell v. Glazier, 128 App. Div. 315 ; Hartog & Beinhauer Candy Co. v. Richmond Cedar Works, 124 id. 627.)

The order should bé reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J.j Laughlin, Clarke and Scott, JJ., concurred

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. .