Guillaume Reusens, Appellant, v. Oliver M. Arkenburgh, Respondent, Impleaded with Susie Hill Arkenburgh and Others

Guillaume Reusens, Appellant, v. Oliver M. Arkenburgh, Respondent, Impleaded with Susie Hill Arkenburgh and Others. First Department, February 18, 1910. Discovery — examination of party before trial denied. On the foreclosure of a mortgage the defendant is not entitled to examine the plaintiff before trial respecting an alleged agreement that the yearly interest was to be added to the principal, where it is apparent that his purpose is merely to discover the plaintiff’s evidence and not to elicit testimony to establish a defense. Appeal by the plaintiff, Guillaume Reusens, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 29th day of December, 1909, denying the plaintiff’s motion to vacate an order for his examination before trial. Raymond Reubenstein of counsel, for the appellant. . Herman B. Goodstein of counsel, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: . This action is. brought to foreclose a mortgage. The complaint alleges that, by agreements of the parties each year, interest was added to • principal. The answer denies this, and the defendant wishes to examine the plaintiff for the purpose of ascertaining, as he says, so that he may prove the same upon the trial, whether the said agreements were in writing or were made orally. The attorney for-the defendant states in his affidavit that the examination is material and necessary to the defendant in order to enable him “ to properly prepare for the trial of this action and his defense therein.” The defendant says that he also desires to ascertain the items of compound interest included in the amount of the bond, to secure which the mortgage was given; but no issue is raised on that head. It is obvious that the defendant desires to examine the plaintiff for the purpose of ascertaining what he will swear to on the trial, not to elicit testimony to establish an affirmative defense, or to rebut the plaintiff’s case. It is well settled that examinations will- not be allowed under such circumstance's. (Caldwell v. Glazier, 128 App. Div. 315 ; Hartog & Beinhauer Candy Co. v. Richmond Cedar Works, 124 id. 627.) The order should bé reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, P. J.j Laughlin, Clarke and Scott, JJ., concurred Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. .