Zeitz v. Cook

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.