Marguerite Smyth, an Infant over the Age of Fourteen Years, by Ira M. Smyth, Her Guardian ad Litem, Appellant, v. Isaac Lichtenstein, Respondent

Marguerite Smyth, an Infant over the Age of Fourteen Years, by Ira M. Smyth, Her Guardian ad Litem, Appellant, v. Isaac Lichtenstein, Respondent (No. 1.) First Department, March 24, 1910. Discovery — examination before trial. A defendant sued by a woman to recover damage^ for alleged indignities and assault, is not entitled to examine the plaintiff before trial, where it appears that his object is not to obtain material testimony but to discover the plaintiff’s case. Appeal by the plaintiff, Marguerite' Smyth, an infant, etc., from an order of the Supreme Court, made at the Hew Lork Special■ Term and entered in the office of the clerk of the county of Hew York on the 2d day of February, 1910, denying the plaintiff’s motion to vacate an order for her examination before trial. 8. A. JLowenstein, for the appellant. ■ Jesse 8. Epstein of counsel [Epstein Erothers, attorneys], for the respondent. [MAJORITY — Clarke, J.:] Clarke, J.: This is an action tó recover damages for alleged indignities and assault. The order provided for the examination of the plaintiff as ah adverse party concerning the issues in the action, and ought not to have been granted. It is obvious that the purpose of the examination was not to obtain testimony material and necessary for the party making the application for use upon the trial, but to obtain in advance the plaintiff’s story, and comes .within the principle announced by this court in Wood v. Hoffman Co. (121 App. Div. 636). The order appealed.from should be reversed, with ten'dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, R. J., Laughlin, Scott and Miller, J.J., concurred. Order reversed,. with ten dollars costs and disbursements, and motion granted, with ten dollars costs.