Wilkens v. Hartridge

Order granting defendant’s motion to examine plaintiff (1) for the purpose of framing a further amended answer and (2) for the purpose of obtaining evidence to substantiate her defense of usury upon the trial modified on the law by striking therefrom the second provision, and as so modified affirmed, without costs; examination to proceed on five days’ notice. It was error, in advance of joinder of issue, to direct the examination of plaintiff for use upon the trial. (Kardonsky v. Tozzi, 217 App. Div. 753.) Scudder, Tompkins, Davis and Johnston, JJ., concur; Lazansky, P. J., concurs in the modification of the order by striking out the provision which grants the examination for the purpose of obtaining evidence to substantiate the defense of usury but dissents from the affirmance of that part of the order which grants the examination for the purpose of framing a further amended answer, and votes for reversal and a denial of the motion.