Opinion
October, 1909.
The moving papers affirmatively establish that the plaintiff has all the information necessary to enable him to frame his complaint. Therefore, he needs no examination of the defendant for that purpose and the order appealed from was improvident. ( Waitzfelder v. Moses Sons Co., 120 App. Div. 144; Matter of Gardner, 124 id. 654; Rosenthal v. Jackson, 125 id. 895.) After the issue is joined, if it become necessary to examine the defendant for the purpose of obtaining evidence necessary and material for use upon the trial, a proper application for such relief can be made. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, Laughlin, Houghton and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.