O'Connor v. O'Connor , 186 A.D. 959 ( 1918 )

Order affirmed, with ten dollars costs and disbursements, upon the grounds (1) that plaintiff’s affidavit on which the order for defendant’s examination was granted failed to comply with section 872 of the Code of Civil Procedure in that it omitted all reference to the defense interposed, and failed’ to allege or show necessity for such examination (General Rules of Practice, rule 82); (2) because the contract alleged by plaintiff is denied in the answer and the examination asked for is not necessary to enable plaintiff to prove this essential element of his case. If plaintiff sustains his allegation the court may then proceed to examine defendant and his books of account to ascertain the extent of his business. (Hartog & Beinhauer C. Co. v. Richmond Cedar Works, 124 App. Div. 627; Sperry & Hutchinson Co. v. O’Neill-Adams Co., 135 id. 285; Louda v. Revillon, 99 id. 431.) Jenks, P. J., Mills, Rich, Kelly and Jaycox, JJ., concurred.