Opinion
March, 1927.
Order for examination of defendants before trial affirmed, with ten dollars costs and disbursements. We are of opinion that appellants' criticism of the language of the order where the parties are directed to submit to an examination as to the various subjects stated, viz.: "Whether or not" the facts are therein set forth, is justified. The examination is not authorized to ascertain whether or not the facts are as stated. The plaintiffs assert that the facts are as alleged in the complaint and moving affidavit. The examination is allowed when it is material and necessary in the prosecution or defense of an action. (Civ. Prac. Act, § 288.) Such examination is not allowed to prove that the facts are "not" as alleged by the party seeking it. Kelly, P.J., Manning, Young, Lazansky and Hagarty, JJ., concur.