Opinion
November 13, 1940.
This is an appeal from an order granting plaintiffs' motion to vacate a notice of examination of plaintiffs before trial. The action is brought by two brothers to recover the sum of $8,250, as alleged by plaintiffs to have been lost while gambling on the outcome of horse races. The answer to the complaint is a general denial. The defendant asks to examine the plaintiffs upon the following questions: "1. The occupation, place of employment, and weekly salary of each of the plaintiffs between November 1, 1937, and June 26, 1938." "2. The place where each of the plaintiffs obtained his respective share of the moneys `belonging jointly to the plaintiffs,' as alleged in paragraph `Third' of plaintiffs' complaint." Defendant's general denial makes it unnecessary for him to examine plaintiffs. He can cross-examine them when they are sworn on the trial. Order affirmed, with ten dollars costs and disbursements. Hill, P.J., Crapser, Heffernan and Foster, JJ., concur; Schenck, J., taking no part.