Lincoln Investment Co. v. Cooper

Order of the County Court of Nassau county vacating order of December 2, 1929, staying plaintiff from proceeding with the action, reversed upon the law and the facts, without costs, and motion denied, without costs, unless plaintiff submits to an examination within ten days after the service of notice of entry of the order upon this appeal and upon five days’ notice from defendants’ counsel to plaintiff’s counsel of the date of examination, in which event the order is affirmed, without costs. The order vacating defendants’ notice of examination of the plaintiff before trial is modified by requiring the plaintiff to submit to examination before trial by its president or secretary in respect to items 4 to 11, inclusive, and 13 and 14 of the notice, and as so modified affirmed, without 744 costs. Defendants are entitled to examine the plaintiff upon the issues of fraud and conspiracy between the plaintiff and the payee, upon which issues the defendants have the affirmative. (Cowing v. Altman, 71 N. Y. 435; Neg. Inst. Law, § 98.) Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ., concur.