Opinion
March 24, 1910.
S.A. Lowenstein, for the appellant.
Jesse S. Epstein of counsel [ Epstein Brothers, attorneys], for the respondent.
This is an action to recover damages for alleged indignities and assault. The order provided for the examination of the plaintiff as an adverse party concerning the issues in the action, and ought not to have been granted. It is obvious that the purpose of the examination was not to obtain testimony material and necessary for the party making the application for use upon the trial, but to obtain in advance the plaintiff's story, and comes within the principle announced by this court in Wood v. Hoffman Co. ( 121 App. Div. 636).
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, SCOTT and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.