Fitzpatrick v. Van Schaick , 59 How. Pr. 472 ( 1880 )

McAdam, J. —

The defendants justify the sale of the 200 shares of Delaware and Lackawanna stock (alleged by the plaintiff to have been converted) under an order given by one Maria L. Hubbard, whom the defendants claim was the plaintiff’s agent. ■ The plaintiff seeks to examine the defendants for the purpose of discovering whether Mrs. Hubbard was the plaintiffs or defendants’ agent. The plaintiff, in the nature of things, ought to know as much about this as the defendants. If she was not the plaintiff’s agent, the main defense fails. As the defendants have the affirmative of the defense, the plaintiff, under the rule laid down in Chapin agt. Thompson (16 Hun, 53), will have to wait until the trial before she can oblige the defendants to tell her what they will swear to concerning it.

Order vacated.