Opinion
April 7, 1911.
Alfred W. Haywood, Jr., for the appellant.
Alex L. Strouse, for the respondent.
Appeal from an order vacating an order for the examination of plaintiff before trial.
The action is for damages for the breach of a promise to marry. The defendant by way of affirmative defenses sets forth certain acts alleged to have been committed by plaintiff which, if proven, will probably constitute at least a partial defense to her cause of action. These acts defendant will be entitled to prove upon the trial, and the plaintiff is certainly a competent witness to prove them. We think that defendant was entitled to examine her before trial to establish the facts which he alleges in defense.
The order appealed from must be reversed and the motion denied. The date for the examination to proceed will be inserted in the order, which must be settled on notice.
INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Order reversed and motion denied; date for examination to be fixed on settlement of order. Settle order on notice.