White v. Improved Property Holding Co.

118 N.Y.S. 1057

Opinion

CLARKE, J.

The moving papers affirmatively establish that the plaintiff has all the information necessary to enable him to frame his complaint. Therefore he needs no examination of the defendant for that purpose, and the order appealed from was improvident. Waitzfelder v. Moses Sons & Co., 120 App. Div. 144, 104 N. Y. Supp. 796; Matter of Gardner, 124 App. Div. 654,109 N. Y. Supp. 95; Rosenthal v. Jackson, 125 App. Div. 895, 110 N. Y. Supp. 786. After the issue is joined, if it become necessary to examine the defendant for the purpose of obtaining evidence necessary and material for use upon the trial, a proper application for such relief can be made.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.