
    Edward F. Caldwell and Victor F. Von Lossberg, Respondents, v. Henry S. Glazier, Appellant.
    First Department,
    October 23, 1908.
    Discovery — matters of affirmative defense.
    A plaintiff, suing to foreclose a mechanic’s lien, is not entitled to examine the defendant before trial as to matters constituting a separate defense, which are not part of the plaintiff’s case, but must be affirmatively established by the defendant.
    Ingraham, J., dissented.
    Appeal by the defendant, Henry S. Glazier, 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 '24tli day of June, 1908, denying a motion to vacate an order for the examination of the defendant before trial.
    
      Alfred F, Seligsberg, for the appellant.
    
      Richard S. Newcombe of counsel [Pressinger & Newcombe, attorneys], for the respondents.
   Clarke, J.:

The action is brought to foreclose a mechanic’s. lien. ■ The complaint sets forth the sale and delivery by the plaintiffs to the defendant of certain gas and electric fixtures and the installment thereof at..the special instance and request of' the defendant at the agreeprice .of. $1,853.46.

The amended answer of the defendant denies-generally the aver-ments of the complaint and as a first separate defense avers that the goods,, wares and merchandise covered by the plaintiffs’ lien and mentioned in the complaint were not the property of the plaintiffs and that said defendant did not purchase the same from .the-plaintiffs, but from one Charles H. Cottrell, who also performed the labor covered by the plaintiffs’ lien;: and that he paid the said Charles H. Cottrell in full. « As a second separate defense, .said defendant avers that the. plaintiffs made false representations which led the defendant to believe that the said Cottrell, and not the' plaintiffs, was the owner of said goods, and that the defendant relying upon said representations and in good faith purchased said goods from said Cottrell,., and not from these plaintiffs, and paid the said Cottrell therefor.

The plaintiffs obtained an order for the examination of the defendant before trial upon the matters set forth in his defenses. The defendant moved to vacate said order, and said motion having been denied, appeals.

It is apparent, upon the face of the papers, that the examination ordered is neither necessary nor material for the plaintiffs’ case. The moving affidavit asserts unequivocally that what is desired is an examination of the defendant in regard to the matters -set up in his separate 'defense. These matters are not part of the plaintiffs’ casé, and must be affirmatively established by the defendant in his own defense. It has. been repeatedly held in this department that such examinations are only allowed where the object is to obtain evidence essential to the moving party’s case or defense, and when it is the intention of the party to use the examination upon the trial. (Dudley v. N. Y. Filter Mfg. Co., 80 App. Div. 164; McKenna v. Tully, 109 id. 598; Oakes v. Star Co., 119 id; 358; Wood v. Hoffman Co., 121 id. 636; Hartog & Beinhauer Candy Co. v. Richmond Cedar Works, 124 id. 627.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for examination granted, with ten dollars costs.

Patterson, P. J., Laughlin and Scott, JJ., concurred; Ingraham, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  