Opinion
May 7, 1920.
Henry M. Dater [ Jay S. Jones and Edward J. Fanning with him on the brief], for the appellant.
Sidney J. Loeb, for the respondent.
The husband seeks this examination before trial merely to see if he can bring out some basis for the defense he has raised. His ground is a statement that if such acts were with the connivance of the plaintiff she "is the one person of all who really knows whether they were so committed, if committed at all."
His affidavit thus alludes to the governess: "She was in the plaintiff's company daily and, in fact, for a few days was in the mountains with the plaintiff. What the conversations were at those times, what arrangements were made between them, whether * * * was to be a governess or was really a detective to lure your deponent into a compromising situation, are all known to this plaintiff."
Defendant nowhere alleges that any collusion or connivance in fact existed. Instead of specifying facts and circumstances under rule 82 of the General Rules of Practice, the affidavit lays bare a conjectural defense based wholly on things hoped for by defendant.
The order is, therefore, reversed, with ten dollars costs and disbursements, and plaintiff's motion granted, with ten dollars costs.
JENKS, P.J., MILLS, PUTNAM, BLACKMAR and KELLY, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and plaintiff's motion granted, with ten dollars costs.