Stevens v. Weygandt

Rich, J.: The plaintiff appeals from an order of the Special Term vacating an ex parte order for the examination of the defendant before trial. The action is brought to recover an alleged loan of $1,000, which is denied by the answer. The affidavit of the plaintiff upon which the order for the examination was granted was sufficient, and the order from which this appeal is taken was improperly made. It is shown and not denied that the defendant was in her employ at the time the loan was made, and had the sole charge of alterations and improvements being made upon premises owned by her; that at defendant’s request she gave him the $1,000, which she understood to be a loan to him which was to be repaid. As part of plaintiff’s affirmative case, it is necessary that she should prove that the money which she delivered to the defendant was a loan, made upon his agreement, express or [544] implied, to repay the same, and this distinguishes the case at bar from the authorities relied upon by the respondent. It seems that the defendant is the only person by whom she can establish this fact and show that the money advanced was not in fact for plaintiff’s benefit and used in the improvement of her property. I think that the plaintiff is entitled to the examination of the defendant before trial (Tisdale Lumber Co. v. Droge, 147 App. Div. 55; Kornbluth v. Isaacs, 149 id. 108; McKeand v. Locke, 115 id. 174; Richards v. Whiting, 127 id. 208; Shonts v. Thomas, 116 id. 854; Donaldson v. Brooklyn Heights Railroad Co., 119 id. 513; Koplin v. Hoe, 123 id. 827; Cherbuliez v. Parsons, Id. 814), but that the examination should he limited to the transaction between the parties which resulted in the alleged loan. The order must, therefore, he reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term to fix a day when the defendant shall appear for examination under the original order of May 9, 1914. Thomas, Carr and Stapleton, JJ., concurred; Burr, J., dissented. Order reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term to fix a day when the defendant shall appear for examination under the original order of May 9, 1914.