Heine v. Weller

Seabury, J. This is an appeal by plaintiffs from an order granting defendant’s motion to vacate an order obtained upon the application of plaintiffs to examine the defendant before trial. The learned court below granted the motion and vacated the order for defendant’s examination because of the denial of the defendant in his answer, and in the affidavit submitted upon the motion of all of the material allegations of the complaint. The fact that a defendant denies the allegations of the complaint does not of itself deprive the plaintiff of a right to examine him before trial, or furnish any legal ground for vacating an order for his examination. Istok v. Senderling, 118 App. Div. 162; Straus v. Peck, 126 N. Y. Supp. 628. Order reversed, with ten dollars costs and disbursements, and motion to vacate order for defendant’s examination denied, with ten dollars costs. Guy and Bijur, JJ., concur. Order reversed, with ten dollars costs, and motion denied, with ten dollars costs.