Gibbs v. Tilgey Realty Corp. , 246 A.D. 780 ( 1935 )

In an action to set aside an assignment of a bond and mortgage and to compel an assignment to plaintiff of an interest therein, and for an accounting, order denying motion of defendant Gold to vacate a notice for his examination before trial and directing such examination on certain matters, reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion, this case is not one where plaintiff is entitled to examine said defendant before trial upon the affirmative defenses contained in his answer, and the court, in directing such examination improperly exercised its discretion. Plaintiff may obtain all the information he seeks from a bill of particulars of said defendant’s defenses. Young, Hagarty, Davis and Johnston, JJ., concur; Lazansky, P. J., dissents and votes to affirm.