Opinion
December, 1930.
Present — Dowling, P.J., Merrell, Finch, McAvoy and Sherman, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, the date for the examination to proceed to be fixed in the order. The fact that the action is in libel does not alter the right to defendant to examine before trial in aid of the affirmative defense set forth in the plea of truth and justification. ( Lattimer v. Sun-Herald Corporation, 208 App. Div. 503; Niehoff v. Star Company, 134 id. 473.) Settle order on notice.