
    (50 Misc. Rep. 626)
    KOPPEL v. HATCH.
    (Supreme Court, Appellate Term.
    April 24, 1906.)
    1. Discovert — Examination of Plaintiff before Answer.
    A defendant in an action on a note, seeking to raise the question whether plaintiff is a bona fide holder, is entitled to an examination of plaintiff before answer, for the purpose of obtaining facts necessary in the framing of an answer raising the issue.
    [Ed. Note. — For eases in point, see vol. 16, Cent. Dig. Discovery, § 50.]
    2. Bills and Notes — Answer—Defenses.
    A defendant sued on a note must, in order to avail himself of the defense that plaintiff is not a bona fide holder, allege that fact in his answer.
    [Ed. Note. — For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 1532, 1561.]
    Appeal from City Court of New York, Special Term.
    Action by Sigfried Koppel against Walter P. Hatch. From an order vacating an order requiring plaintiff to appear and be examined, in order to enable defendant to frame his answer, defendant appeals.
    Reversed, with costs.
    Argued before SCOTT, P. J., and TRUAX and BISCHOFF, JJ. George H. Mallory, for appellant.
    Simis & Coyle, for respondent.
   PER CURIAM.

The affidavits presented by the defendant on the application for an order to compel the plaintiff to appear for examination complied with the statute, and showed that the information sought by the defendant was material and necessary.- In the language of the Appellate Division in Kramer v. Kramer, 70 App. Div. 615, 74 N. Y. Supp. 1049:

“It is evident that the testimony of the plaintiff, in view of the peculiar circumstances surrounding the execution and the delivery of the note, is material and necessary to the defense of this action. * * * The facts as to how the plaintiff became possessed of the note and the consideration, if any, that was paid are peculiarly within the knowledge of the plaintiff, and upon such a subject the defendant must be presumed to be absolutely ignorant. It devolves upon him to show that the plaintiff is not a bona fide holder of the note, and it is quite likely that he can only show that upon examination of the plaintiff. * * * ”

In order to show that plaintiff is not such a bona fide holder, he must allege that fact in the answer.

The order appealed from is reversed, with costs and disbursements.  