On argument, by consent, order denying defendant’s motion for a bill of particulars affirmed, without costs. As to item ninth of the notice of examination, the order granting plaintiff’s motion to vacate is affirmed, without costs. As to items first to eighth, inclusive, the order is reversed on the law and the facts, with ten dollars costs and disbursements, and the motion to vacate as to those items is denied, with ten dollars costs. Items first to fifth, inclusive, are material in support of the first affirmative defense, the burden of proving which is upon the defendant. Items sixth to eighth, inclusive, are material in support of the second and partial defense, which applies to plaintiff’s second cause of action. If any part of the sum of $4,753.70 was given by plaintiff to defendant as usury, as alleged in the second and partial defense, the defense will be good as to that, and defendant should, therefore, be permitted to examine the plaintiff before trial to ascertain the facts. The examination will proceed on five days’ notice. Lazansky, P. J., Young, Carswell, Seudder and Tompkins, JJ., concur.
Ray Apartments, Inc. v. Elk Estate, Inc.
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