
    Bartholomay Company, Inc., Plaintiff, v. John A. Regan, Defendant.
    Supreme Court, Monroe Special Term,
    June 2,1924.
    Depositions — examination before trial — action upon promissory note — plaintiff entitled to examine defendant concerning affirmative defenses which would defeat recovery.
    In an action upon a promissory note the plaintiff is entitled under section 290 of the Civil Practice Act to examine the defendant before trial concerning affirmative defenses which, if established, would defeat a recovery.
    Motion by defendant to vacate, modify and limit a notice for examination before trial.
    
      J. M. E. O’Grady, for the motion.
    
      Hubbell, Taylor, Goodwin & Moser, opposed.
   Rodenbeck, J.

The action is upon a promissory note. The examination relates to affirmative defenses. The plaintiff must be prepared to meet these defenses. It will be sufficient for it to prove the note and its non-payment to make out a cause of action, but after the defendant has put in evidence of his defense, the burden shifts upon the plaintiff to show that it has a valid and subsisting claim and the amount of the claim. Under such circumstances an examination by the plaintiff as to defendant’s affirmative defenses is permitted. Civ. Prac. Act, § 290; Schweinburg v. Altman, 131 App. Div. 795; Globe Elevator Co. v. American Molasses Co., 197 id. 921. Motion denied, with ten dollars costs to abide the event.

Ordered accordingly.  