
    Howe v. Leary et ux.
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    Discovert—Examination oe Plaintiff—Sueficienot of Defense—Evidence.
    In an action against husband and wife to foreclose a mortgage on the husband’s real estate, the wife filed an affidavit before answer, stating that the mortgage was the property of her husband, co-defendant, and that plaintiff and he brought the action collusively, for the purpose of cutting off defendant’s contingent right of dower in the premises, and asked an order for the examination of plaintiff and co-defendant before .trial. The evidence showed that the husband was on ill terms with his wife; treated her with cruelty; attempted to obtain a release of her dower-rights; and supported her and his children meagerly, and threatened to leave them unprovided for by his will. Held, that the evidence justified an order for the ex-animation, and that the affidavit setting forth these facts as a defense was sufficient, under Code Civil Proc. § 872, providing that the affidavit by defendant in such case before answer shall state the nature of the defense.
    Appeal from special term, Kings county.
    Action by Albert Howe against Thomas J. Leary and Jessie, his wife, to foreclose certain mortgages. Defendant Jessie Leary asked, before answer, for an order for the examination of plaintiff and her co-defendant before trial. Prom an order directing their examination, plaintiff and defendant Thomas J. Leary appeal.
    Affirmed.
    Argued before Barnard, P. J., and Dykman, J.
    
      Thomas F. Donnelly, for appellant Albert Howe. Fromme Bros., for appellant Thomas J. Leary. Arnoux, Ritch & Woodford, (Edwd. Marshall Grout, of counsel,) for respondent, Jessie Leary.
   Barnard, P. J.

This action is brought to foreclose mortgages on real property owned by the defendant Thomas Leary. The mortgages were acquired by the plaintiff by assignment from the Irving Savings Institution. The mortgages were on the property when Leary bought. The defendant Jessie Leary obtained an order to examine the plaintiff and her husband. The order was obtained before answer. The affidavit upon which the order was granted was sufficient under section 872 of the Code, subd. 4. Ho objection is made to the affidavit in any other respect than that no defense is proven to the action, and no sufficient facts and circumstances are established to justify an order for the examination. There is a defense shown, if true. Leary has conspired with the plaintiff to assert the validity of the mortgages which were acquired with Leary’s money for the purpose of cutting off the rights of his wife therein. If Howe merely holds the title to the mortgages by an assignment, when the same are paid in fact by the owner of the title, it will make a defense on the trial if proven. The husband is on ill terms with his wife; treats her with cruelty; is attempting to obtain her signature to a mortgage to cut off her dower. While he is of substantial means, he supports his wife and children with great meagerness. He threatens to cut off his wife and children froni his estate, so far as permitted by law. These facts and circumstances are sufficient to justify the order. The wife is entitled to know the particulars of the transaction so as to frame her answer. The rigid rule that, if a party do not actually know the facts which make the defense, nti order to examine can be granted, would render the section of the Code in question of little practical use. The section should have a broader scope. Where facts and circumstances are shown which justify an examination of a party, so that a pleading may be framed for the trial of the issue, the order should be granted. The notice of the defense, and the facts and circumstances to show ttiat an examination is material and necessary, are sufficiently stated, and the order should be affirmed, with costs.  