Tiebout v. Reder

241 A.D. 630

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1934
• Status: Published

Opinion

Order denying plaintiff’s motion to eliminate item 3, so far as it relates to duress, from the defendant’s notice of examination before trial, reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs; examination to proceed on five days’ notice. In the first instance the defense of duress is not involved so far as the defendant is concerned. The facts with reference thereto are part of the plaintiff’s cause of action as set out in the complaint, and the burden of proof in the first instance, in order to entitle the plaintiff to the affirmative relief he seeks, rests upon the plaintiff. He, therefore, may not be examined by the defendant with respect to the facts relating thereto. Lazansky, P. J., Young, Kapper, Carswell and Davis, JJ., concur.