Schwartz v. J. L. Taylor & Co.

225 A.D. 899

Opinion

Order granting plaintiff’s motion to vacate notice of examination before trial reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The mere lapse of time between the commencement of the action and the notice of examination of a party before trial, in the absence of any other showing, is not sufficient reason for vacating the notice on the ground of laches. (Shonts v. Thomas, 116 App. Div. 854; Donaldson v. Brooklyn Heights Railroad Co., 119 id. 513; Tisdale Lumber Co. v. Droge, 147 id. 55; Kornbluth v. Isaacs, 149 id. 108.) The burden is upon defendants to prove affirmatively that plaintiff had or might have obtained similar employment and they are entitled to examine the plaintiff upon that issue. (Howard v. Daly, 61 N. Y. 362; Allen v. Cien Creamery Co., 101 App. Div. 306; Abramson v. Davis Gowns, Inc., 128 Misc. 454.) Lazansky, P. J., Hagarty, Seeger, Carswell and Scudder, JJ., concur. Settle order on notice; date of examination to be fixed therein.