" And the fourth department has taken much the same attitude in Marine Trust Co. v. Nuway Devices, Inc. ( 204 App. Div. 752); Caskie v. International Ry. Co. ( 230 App. Div. 591), and Green v. Selznick ( 220 App. Div. 12). All these cases emphasize the power of the court to permit an examination of a party before trial, when material and necessary, irrespective of who has the affirmative, although, as a general rule, governing the exercise of discretion, the court will deny the application, unless the testimony be necessary to prove the claim or an affirmative defense.
While it may be argued with some force that, if examinations before trial are to be had at all, a party should be given free rein to inquire into all the issues involved in the case, instead of confining the investigation to the affirmative of those matters concerning which the movant has the burden, we must take the law as we find it, and as it has been established by the decisions. It is true that this court has, in exceptional cases, extended the rule to a very limited degree. ( Caskie v. International R. Co., No. 2, 230 App. Div. 591; Green v. Selznick, 220 id. 12; Marine Trust Co. v. Nuway Devices, Inc., 204 id. 752.) But these cases constitute exceptions to the rule, and not the rule itself.
This we deem a condition justifying the granting of an order for the examination of the plaintiff at the instance of the defendant despite the fact that defendant's case is necessarily entirely negative. ( Public National Bank v. National City Bank, 261 N.Y. 316; Caskie v. International R. Co., 230 App. Div. 591. ) The plaintiff urges, however, that the examination should not be allowed because plaintiff as a witness at the trial on her own behalf would be incompetent to testify as to personal transactions with the defendant's intestate. (Civ. Prac. Act, § 347.)
Present — Sears, P.J., Crouch, Taylor, Thompson and Crosby, JJ. Order affirmed, with ten dollars costs and disbursements. All concur, except Sears, P.J., and Crosby, J., who dissent and vote for reversal on the principles stated in the opinion in Caskie v. International Railway Company ( No. 2) ( 230 App. Div. 591), decided by this court November 12, 1930.