Opinion
June, 1928.
Order modified by disallowing examination of plaintiff by defendant Marcus Leavitt as to items 3 and 4, and as so modified affirmed, without costs. Plaintiff may establish prima facie the allegations affected by items 1 and 2 by documentary evidence, without the use of witnesses, and, therefore, under the peculiar circumstances involved herein, an examination of plaintiff by defendant Leavitt with respect to those items may properly be allowed in the exercise of discretion. ( Marine Trust Co. v. Nuway Devices, Inc., 204 App. Div. 752.) But items 3 and 4 may not rest prima facie solely upon documentary evidence, since it may be necessary for plaintiff to prove by oral testimony the amount claimed to be due upon the bond and mortgage in suit, and a similar situation may exist with respect to the stockholders' consent, etc., and, therefore, defendant Leavitt may not properly examine plaintiff with respect to these items. Lazansky, P.J., Young, Hagarty, Seeger and Carswell, JJ., concur.