Sarah A. Presbrey, Respondent, v. The Public Opinion Company, Appellant

Sarah A. Presbrey, Respondent, v. The Public Opinion Company, Appellant. Examination of plaintiff hefoi'e trial—failure of consideration of a note — that the pan'ty will he present at the trial to testify not a reason for refusing the examination. A note was given by a corporation while, under the control of the husband and of the son of the payee, who, it was alleged as a defense to an action brought by her upon the Bote, gave no consideration therefor. On an application by the defendant, the corporation, to examine the plaintiff ■ before trial, the plaintiff, in reply, stated that she would he present at the trial • to testify. Eeld, that the defendant was entitled to examine the plaintiff before trial in order to show just what she gave for the note, and to use that examination upon the trial, in aid. of its defense that the note was without consideration; That this right ■ could not be taken away by a statement, upon the part of the plaintiff, that she would be present at the trial to testify. Appeal by the defendant, The Public Opinion Company, from an order of the Supreme Court, made at the New York .Special Term and entered in the office of the clerk of the county of New .York on the Ith day of May, 1896, vacating an order for the examination of the plaintiff before trial theretofore granted in the action. Th¿ action was brought to recover upon a promissory note alleged to have been made by the defendant payable to the plaintiff. Fsek Oowen for the appellant. Frederick F. Andersonfor the respondent. [MAJORITY — Per Curiam :] Per Curiam : In this case we think it clear that the plaintiff is entitled to the examination sought. The defense .is that the note sued on was without consideration. Upon the trial of the action, upon the introduction of the note with proper proof as to its execution, the consideration is presumed, and the defendant then has to establish as an affirmative defense the fact that there is no consideration. The defendant corporation was, at the time the note was given, under the control of a husband and son of the plaintiff; and it is alleged that the note sued on was executed and delivered to the plaintiff by-her husband and son as officers of the defendant. It is quite apparent that it will be most material to prove upon the trial just what consideration the plaintiff paid for the note, and the circumstances under which the note was given. And what, if anything, was actually paid by the plaintiff is the material fact in controversy in this case. The defendant has the right to examine the plaintiff to prove just what she gave for the note and to use that examination upon the trial in aid of its affirmative defense. The mere fact that the plaintiff or her attorney says that she will be at the trial to testify does not take away the right of the defendant to its examination before trial, that right being expressly given by the Code. There is nothing to justify the criticism that this is a fishing examination, or that the examination is not sought for in good faith. We think, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination denied, with ten dollars costs. Present-—- Van Brunt, P. J., Williams, Patterson, O’Brien and Ingraham, JJ. Order reversed, with ten dollars costs and disbursements, and the motion to vacate order for examination denied, with ten dollars costs.