Opinion
October, 1930.
Present — Sears, P.J., Crouch, Taylor, Edgcomb and Thompson, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, upon the ground that the testimony and evidence sought to be obtained by the examination ordered are neither material nor necessary, since all the issues raised by the pleadings relating to the asserted rights of McNamara under the instrument dated December 11, 1927, and under the asserted agreements, which alone are said to constitute the consideration for that instrument, were raised by the pleadings in a former action, fully litigated and decided adversely to McNamara. The judgment of the court in that action rested not only on the decision of the issues raised by the affirmative defense, but also on the decision of the issues raised by the general denial; and neither can be said to have been more or less necessary and essential than the other. All concur.