Opinion
January, 1932.
Order denying plaintiff's motion to require defendant to appear for examination to enable plaintiff to frame his complaint reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, without costs; examination to proceed on five days' notice. The facts asserted by the plaintiff, standing undenied, require that he be permitted to examine the defendant so as to enable him to frame a complaint upon the theory, applicable to the facts, which he deems desirable. ( Teall v. Roeser, 206 App. Div. 371; Heye v. American Chemical Eduction Co., 185 id. 13.) Lazansky, P.J., Young, Kapper, Hagarty and Carswell, JJ., concur.