Jenning v. Gunnison

GAVEGAN, J. The action was to recover commissions for services alleged to have been rendered by the plaintiff as factor for the' account of the defendant. Thé answer, after denying absolutely the allegations in the complaint that there was an agreement between the parties, sets up payment as a first separate defense, and money loaned as a second separate defense and counterclaim. Plaintiff’s reply to the counterclaim is a general denial. The order obtained by the defendant, directing the plaintiff to appear. for examination before trial, is based on defendant’s affidavit that the testimony sought is material and necessary to enable defendant to prepare for trial, for the reason that he is entirely ignorant of the agreement alleged in the complaint. The mere statement of defendant’s ignorance of the agreement alleged, in view of the unqualified denial thereof in his answer, is not sufficient under the authorities to entitle him to an examination of the plaintiff before trial. Caldwell v. Glazier, 128 App. Div. 315, 112 N. Y. Supp. 655; Merill & Baker v. Woolworth, 53 Misc. Rep. 253, 103 N. Y. Supp. 57. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. BRADY, J., concurs. GIEGERICH, J., concurs in result.