205 A.D. 705 | N.Y. App. Div. | 1923
An examination of the defendant upon most of the issues sought was properly ordered, since upon these issues the plaintiff has the affirmative, either because of the nature of the cause of action, or because the plaintiff has assumed the burden by reason of the structure of its pleading. For example, the plaintiff ordinarily would not have the affirmative of showing payment. Where, however, plaintiff has alleged certain payments, resulting in a balance due, which allegations are put in issue by the defendant, plaintiff then has the affirmative of showing the payments made on account. (Conkling v. Weatherwax, 181 N. Y. 258.)
The order should be modified so as to exclude item G, since that concerns a matter set up in a counterclaim, upon which the defendant obviously has the affirmative. The order should also be modified so as to not to require the five officers of the defendant to appear at the same time for examination. The defendant should first be examined through one or perhaps two of its officers, and the attendance of the others required subsequently, should this be found necessary.
The defendant also asks for the vacation of a subpoena duces tecum requiring the production of books and papers, insisting that such production is only permissible through an order of the court, and'that the plaintiff is seeking to obtain by this means a discovery
The order should be modified in accordance herewith, and as modified affirmed, without costs.
Clarke, P. J., Dowling, Merrell and McAvoy, JJ., concur.
Order modified as indicated in opinion, and as modified affirmed, without costs. Settle order on notice.