Opinion
February, 1929.
Order denying motion of defendant The National City Bank of New York to examine plaintiff and his assignor reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, without costs. The appealing defendant is entitled to the examination since the particulars sought to be inquired about are matters in confession and avoidance which come within the exception to the general rule that would otherwise control, because the plaintiff has the burden with respect to the validity of the assignment to him. It is entitled to establish, if it can, that plaintiff's assignor had no existence as a private corporation at the time of the alleged assignment by reason of what had transpired with respect to the corporate existence of plaintiff's assignor and its properties. ( Severnoe Securities Corp. v. Phoenix Assur. Co., Ltd., 124 Misc. 188; Carmody's N.Y. Practice, p. 360; Civ. Prac. Act, § 288.) Likewise it is entitled to show facts which may establish that the assignment was invalid under the law of Russia, which right permits it to go into the question of consideration, which would not have controlling effect under the laws of the State of New York, but which may have some effect under the law of Russia, when that law is established. Lazansky, P.J., Hagarty, Seeger, Carswell and Scudder, JJ., concur. Settle order on notice; date of examination to be fixed therein.