
    Arthur Heine and Benjamin Heine, Appellants, v. Henry J. Weller, Respondent.
    (Supreme Court, Appellate Term, First Department,
    October, 1913.)
    Depositions — examination of defendant before trial — pleading.
    The mere fact that the allegations of a complaint are denied by the answer does not deprive plaintiff of his right to an order for the examination of defendant before trial or furnish any ' legal ground for vacating such an order.
    Appeal by plaintiffs from an order of the City Court of the city of New York granting a motion of defendant to vacate an order for defendant’s examination before trial.
    
      Fixman, Lewis & Seligsberg (Walter N. Seligsberg and Clarence M. Lewis, of counsel), for appellants.
    Louis Werner (S. A. Lowenstein, of counsel), for respondent.
   Seabury, J.

This is an appeal by plaintiffs from an order granting defendant’s motion to vacate an order obtained upon the application of plaintiffs to examine the defendant before trial. The learned court below granted the motion and vacated the order for defendant’s examination because of the denial of the defendant in his answer, and in the affidavit submitted upon the motion of all of the material allegations of the complaint. The fact that a defendant denies the allegations of the complaint does not of itself deprive the plaintiff of a right to examine him before trial, or furnish any legal ground for vacating an order for his examination. Istok v. Senderling, 118 App. Div. 162; Straus v. Peck, 126 N. Y. Supp. 628.

Order reversed, with ten dollars costs and disbursements, and motion to vacate order for defendant’s examination denied, with ten dollars costs.

Guy and Bijur, JJ., concur.

Order reversed, with ten dollars costs, and motion denied, with ten dollars costs.  