Zeitz v. Cook 142 N.Y.S. 1151

PER CURIAIM.

Order vacating order for examination before trial reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Tbe affirmative defense is a legitimate ground to examine a plaintiff before trial. Plaintiffs' relation to this bond and mortgage necessarily implies that tbey know how they took It with the guaranty, and hence that a plaintiff can give testimony that is material upon tbe issue whether or not tbey made it a cover for a usurious loan to the mortgagor. Anderson v. Lisman, 130 App. Div. 134, 114 N. Y. Supp. 343. The grounds shown for such axamlnatioa were sufficient. Tisdale Lumber Co. v. Droge, 147 App. Div. 55, 131 N. 1. Supp. 633; Continental Securities Co. v. Belmont, 147 App. Div. 113, 131 N. Y. Supp. 713; Poole v. Means, 144 App. Div. 155, 128 N. Y. Supp. 751.