Empire Cream Separator Company, Respondent, v. Walter J. Diamond, Appellant

Empire Cream Separator Company, Respondent, v. Walter J. Diamond, Appellant. First Department, November 6, 1914. Discovery — examination of defendant before trial denied. A plaintiff who, under the pleadings in an action to recover for merchan dise sold and delivered, has nothing to prove except the amount due and unpaid, is not entitled to an order for the examination of the defendant before trial as to his alleged separate defense and counterclaim. Appeal by the defendant, Walter J. Diamond, 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 21st day of April, 1914, denying defendant’s motion to vacate an order for his examination before trial. Chester E. Frankel of counsel [ Janover, Frankel & Janover, attorneys], for the appellant. William C. Dodge of counsel [Louis H. Porter, attorney], for the respondent. [MAJORITY — Clarke, J.:] Clarke, J.: The complaint alleges that the plaintiff sold and delivered to the defendant, at his special instance and request, certain goods, wares and merchandise, for which he promised and agreed to pay the sum of $1,327.52; that said goods, wares and merchandise were fairly and reasonably worth said sum, and that no part thereof has been paid except $550.56, leaving a balance still due and owing of $776.96, for which judgment is demanded. The answer, by not denying, admits every allegation of the complaint except the amount due, and sets up an affirmative defense and a counterclaim alleging an abrogation of the original agreement and the making of a new contract, which is in writing and set forth in defendant’s bill of particulars, and alleges that defendant kept all the provisions of said agreement hut that plaintiff breached the same and demands $1,000 on his counterclaim. The subsequent agreement is also set out in the plaintiff’s reply. Plaintiff, under the pleadings having to prove nothing but the amount due and unpaid, obtained an order for the examination of the defendant as to his alleged separate defense and counterclaim. The defendant moved to vacate such order, which motion being denied this appeal is taken. No reason is shown to bring this case within the exception to the rule, many times laid down in this department, that, except in extraordinary cases, the right to examine should be limited to eliciting testimony in support of the examining party’s case. (Caldwell v. Glazier, 128 App. Div. 315; Reusens v. Arkenburgh, 136 id. 653; McClarty v. Giroux, 142 id. 750; Bruhl v. Nedwell, 164 id. 932.) The order appealed from should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.