Antonio Nocito, Appellant, v. Gioacchino Acierno, Respondent

Antonio Nocito, Appellant, v. Gioacchino Acierno, Respondent. First Department, November 22, 1907. Deposition —slander — examination before trial denied. In an action for slander in charging the plaintiff with burning a building to obtain insurance, where the answer is merely a general denial with separate defenses in mitigation of damage without a plea of justification, the defendant is not entitled to examine the plaintiff before trial for the purpose of discovering the name of a third person who will be a witness for the plaintiff. Appeal by the plaintiff, Antonio Nocito, 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 16tli day of Oqtober, 1907, denying the plaintiff’s motion to vacate an order for his examination before trial. George J. McDonnell, for the appellant. Percival 8. Menken, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: This was an action for slander, the charge being that defendant said, “ You,” meaning the plaintiff, “ are a dishonest man.” . “Ton,” meaning plaintiff, “ have wilfully set fire to your drug store at No. 9 Spring street, intending to defraud the insurance company of th'e amount of your insurancé.” The answer is a general denial, with two separate defenses, neither of which is a justification, and facts are set up in mitigation of damages. In one of the defenses it is alleged that a third person came in after the conversation at which the plaintiff told this third person that he was a witness, but that the defendant does not know who the third person was. It does not seem that any of the subjects upon which this defendant seeks to examine the plaintiff can be material evidence upon the trial. An examination before trial is not authorized for the purpose of find ing out-.the name of a third person who will be a witness, and there seems to be no issue here as. to whether or not the plaintiff set fire to his drug store at No. 9 Spring street. • As none of this, testimony could be material upon the trial upon any issue raised by the pleadings, the defendant was not entitled to the examination of the plaintiff. The order appealed from is reversed, with ten dollars costs and disbursements, and the motion to' vacate the order for the examination of the plaintiff granted, with ten dollars costs. Patterson, P. J., McLaughlin, Houghton and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.'