Opinion
May, 1926.
Present — Clarke, P.J., Dowling, Finch, Martin and Wagner, JJ.
The burden of proof being on the defendant to show either that the plaintiff has found employment elsewhere or has declined an offer of similar employment, or that by due diligence the plaintiff might have found similar employment ( Howard v. Daly, 61 N.Y. 362), the defendant can have an examination before trial on this issue, upon which he has the affirmative. Any evidence in favor of the defendant thus disclosed would be competent as tending to show that there should have been a further reduction from the claim of the plaintiff against the defendant, even without an affirmative plea. ( Heroy v. Fan de Siecle Co., 16 App. Div. 171, 174.) Order reversed, with ten dollars costs and disbursements and motion to vacate notice of examination denied, with ten dollars costs. The date for the examination to proceed to be fixed in the order. Settle order on notice.