Opinion
November 22, 1907.
George J. McDonnell, for the appellant.
Percival S. Menken, for the respondent.
This was an action for slander, the charge being that defendant said, "You," meaning the plaintiff, "are a dishonest man." "You," meaning plaintiff, "have wilfully set fire to your drug store at No. 9 Spring street, intending to defraud the insurance company of the amount of your insurance." The answer is a general denial, with two separate defenses, neither of which is a justification, and facts are set up in mitigation of damages. In one of the defenses it is alleged that a third person came in after the conversation at which the plaintiff told this third person that he was a witness, but that the defendant does not know who the third person was. It does not seem that any of the subjects upon which this defendant seeks to examine the plaintiff can be material evidence upon the trial. An examination before trial is not authorized for the purpose of finding out the name of a third person who will be a witness, and there seems to be no issue here as to whether or not the plaintiff set fire to his drug store at No. 9 Spring street. As none of this testimony could be material upon the trial upon any issue raised by the pleadings, the defendant was not entitled to the examination of the plaintiff.
The order appealed from is reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the plaintiff granted, with ten dollars costs.
PATTERSON, P.J., McLAUGHLIN, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.