Opinion
March 16, 1954.
Present — Peck, P.J., Dore, Breitel, Bastow and Bergan, JJ.
The complaint pleads a cause of action to set aside a separation agreement between the parties grounded on fraud; and a cause of action for a judicial separation. The fraud pleaded is defendant's misrepresentation of his financial resources as an inducement to the separation agreement. A broadly based examination before trial has been allowed inquiring into defendant's finances and income over a period of five years. The cause of action to set aside the separation agreement arises in a matrimonial context and is associated with another cause of action for a separation. If plaintiff is to have the examination sought she must show facts indicating both that the cause has merit and that special circumstances suggest that the examination will be necessary. The thin and general factual statements in the affidavit in support of the application to examine do not meet those requirements. Order unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied.