
    Anton Peterson, Appellant, v. Frank W. Fowler and John A. Phillips, Defendants, Impleaded with “ Charles ” Alton, Respondent.
    First Department,
    March 24, 1911.
    Discovery — examination before trial — knowledge that note was delivered for special purpose — deficiencies in affidavit — privilege — questions tending to incriminate.
    Plaintiff suing to restrain the further negotiation of a promissory note made and delivered for a specific purpose, but diverted by the payee and transferred to a holder who seeks by a counterclaim to enforce the note, is entitled to examine the holder before trial in order to show that he took the note with knowledge that it had been given for a specific purpose and had been diverted.
    Such evidence is material to the affirmative case alleged in the complaint and also as an affirmative defense to the counterclaim.
    
      Such examination will he granted although there he deficiencies in the afladavit, if supplied by the answering affidavit.
    Such examination will not be denied upon the ground that it may tend to convict the defendant of complicity in the fraudulent diversion of the note, as the defendant can only assert his constitutional rights when questioned upon the examination.
    Appeal by the plaintiff, Anton Peterson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the'county of New York on the 24th day of January, 1911,, vacating and setting aside an order for the examination of the defendant Alton before trial.
    
      Charles Trosk, for the appellant.
    
      Francis S. Williams, for the respondent.
   Scott, J.:

Plaintiff appeals from an order vacating an order for the examination before trial of the defendant Alton. The action is to restrain the further negotiation of a promissory note which plaintiff made and delivered to the defendant Fowler for a specific purpose, as it is alleged, and which Fowler diverted. The note came into the hands of the defendant Alton who now holds it. He claims to have received it from the defendant Phillips, and to have given value for it. Alton not only defends plaintiff’s action, but also seeks by counterclaim to enforce the note. Plaintiff alleges and seeks to prove by Alton’s examination that the latter received the note with knowledge that it had been given for a specific purpose and had been diverted and that he gave no consideration for it. In the nature of things these matters must be within Alton’s knowledge and there seems to be no just reason why he should not be required to testify. There is no force in the suggestion that plaintiff can use the evidence to be elicited from Alton only by way of defense to the counterclaim. The defense is an affirmative one, the burden of establishing which will rest on plaintiff and the evidence will also be material to his affirmative case made by the complaint. It is also objected that plaintiff’s affidavit is insufficient. Even if this objection was well founded (and we do not say that it is) the deficiencies of that affidavit would be fully supplied by the affidavit of Alton himself, which clearly shows that he knows the facts. The suggestion that Alton should not be examined because his answer might serve to convict him of complicity with the fraudulent diversion of the note, is no answer to the order for an examination, but rather suggests that the case is one wherein an examination will promote the ends of justice. When embarrassing questions are put will be quite time enough for the defendant to invoke his constitutional right to be excused from answering.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. A date for the examination to proceed will be inserted in the order, which must be settled on notice.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination denied, with ten dollars costs. Date of examination to be fixed on settlement of order. Settle order on notice.  