Zeitz v. Cook

157 A.D. 940

Opinion

Order vacating order for examination before trial reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. The affirmative defense is a legitimate ground to examine a plaintiff before trial. Plaintiffs’ relation to this bond and mortgage necessarily implies that they know how they took it with the guaranty, and hence that a plaintiff can give testimony that is material upon the issue whether or not they made it a cover for a usurious loan to the mortgagor. (Anderson v. Lisman. 130 App. Div. 134.) The grounds shown for such examination were sufficient. (Tisdale Lumber Co. v. Droge, 147 App. Div. 55; Continental Securities Co. v. Belmont, Id. 118; Poole v. Means, 144 id. 155.) Jenks, P. J., Carr, Rich, Stapleton and Putnam, JJ., concurred.