Russell v. Pace

Order reversed on the law and the facts, with ten dollars costs and disbursements,. and motion to vacate notice of examination denied, on the ground that no sufficient reason appears for not permitting the examination before trial of the defendant, respondent (except as to items 1 and 2). While the action is for alienation of affections, the parties defendant are respectively the father and -mother of plaintiff’s wife. Nothing of a scandalous nature is likely to develop on the examination; and there will be no temptation to use the evidence “ for ulterior purposes ” as is sometimes anticipated. (See Wessel v. Schwarzler, No. 1, 144 App. Div. 587.) In the exercise of discretion the court will permit examination in this type of eases where it is apparent that there is no ulterior purpose and that evidence necessary to establish plaintiff’s case is in the possession of the defendants; and that-the trial will be facilitated by such examination. In this case stronger evidence is required than where the defendant is not a relative. (See Kennell v. Rider, 225 App. Div. 391; affd., 252 N. Y. 602.) The examination is to proceed at the place named five days after the entry of the order. Lazansky, P. J., Young, Hagarty and Davis, JJ., concur; Kapper, J., dissents and votes to affirm.