Jacobs v. Brody

Action is to establish a joint venture among plaintiff and defendants. Answer denies every allegation of the complaint. Plaintiff seeks to examine Philip and Nettie Brody, defendants. Many reasons are advanced by defendants why this examination should not be permitted, such as: It is not material and necessary, ambiguous and too wide in scope, premature, and so forth. These are not legal objections. A plaintiff may examine one or more defendants as to issues concerning which he has the burden to affirmatively prove and also as to a defense .which, if unanswered and established, would destroy his cause of action. (Oshinsky v. Gumberg, 188 App. Div. 23.) The objection raised, that plaintiff cannot examine until she obtains her interlocutory decree, is good as to the issues concerning the accounting. It is not as to matters which she has to prove to win the interlocutory decree. The examination will be permitted as to those matters.

Motion to vacate is granted as to items 6, 7, 8, 9, 11 and 15. Settle order on notice fixing time of examination by agreement.