Locomobile Co. of America v. Nichols

Plaintiff has obtained an order for defendant’s examination upon all the issues included in the pleadings, including matters in avoidance of defendant’s affirmative defenses. It is too well established to require citation that in the absence of special circumstances an examination of an adverse party should not be granted for the purpose of meeting the issues which that party must first establish. Such an examination is palpably ordinarily merely a cross-examination before trial, and without even the limits of a previous direct examination. In this case I find no special circumstances justifying such an examination; on the contrary, the matters which the plaintiff claims that he expects to prove by the defendant are in the main directly contrary to the matters pleaded by defendant in his verified answer and which he must prove at the trial.

The order should therefore be modified, by limiting the examination to the issues raised by the complaint and denials, and, as modified, affirmed, without costs to either party, but with disbursements to the appellant. All concur.