
    Marie Lowenthal, as Executrix, Respondent, v. Alfred D. Leonard, Appellant.
    (City Court of New York, General Term,
    May, 1897.)
    Examination before trial — Discovery.
    Where the answer in an action for rent, brought by the executrix of the lessor, alleges that the making of the lease was induced by false representations of the lessor that he had an extensive and valuable practice as a physician and sets up a counterclaim for damages on account of such fraud, the burden of proof as to the making of such representations rests upon the defendant, and the plaintiff should not be required to submit to an examination and to make discovery of her intestate’s books of account before trial, especially where she stipulates to be present at the trial and submit to examina^ tion and produce the books at that time, if desired.
    Appeal from order vacating-order for examination of plaintiff before trial' and for inspection and discovery of books.
    P. P. Safford, for appellant.
    ■Herbert Reeves, for respondent;
   Scuchman, J.

This is an appeal from an order vacating an order for the examination' of the plaintiff before trial,' and an inspection and discovery of books, etc.

The plaintiff’s cause of action is for rent accrued by virtue of a written lease made by Herman Lowenthal, the plaintiff’s intestate, with defendant.

The defense is, that the lease was procured by fraud, in that the plaintiff’s intestate falsely represented to. the defendant, at the time of the making of the lease, “that he.had an extensive and valuable practice as a physician,” which induced the defendant, who was also á practicing physician, to enter into said lease at the rentals therein mentioned, and sets-up a counterclaim of $500 for damages on account of the said fraud.

The defendant .seeks to examine the plaintiff, the wife of said decedent, as to her knowledge of the extent of said practice and as to the identity .and nature of the bank-books, cash-books, checkbooks, and other books of account and papers, discovery of which he is also seeking herein.' “ Knowledge as to the exact extent of said decedent’s business at the time of the making of the lease is peculiarly possessed by the plaintiff, who knows from her own recollection and from the custody of the books of account of said Lowenthal, deceased, what his professional income amounted to at the time, and there is no other witness, so far as I know, who has exact or personal knowledge.”

•Considering that the defendant has the burden of proof as to the making of the false representation alleged to have been made by Doctor Lowenthal, since deceased, and that his testimony is limited by the rules of evidence relative to personal communications and transactions had with deceased persons, it seems to be the wiser course to let the defendant discharge that onus first at the trial, and if he 'does deliver himself of it, then allow him to prove the falsity thereof.

The plaintiff has stipulated to be at the trial and submit to an examination if desired and produce books, etc.

The question involved can be better ruled upon and the inquiry better kept in bounds at the trial than on this examination.

The fact seems to be that the examination is proposed somewhat to annoy the plaintiff, for she swears that George W. Simers, Jr., when he served the papers on her, said he had come to make her trouble.” Simers says: “ I told her she had papers served on Dr. Leonard and now it was her turn.”

There seems to us no necessity for the plaintiff’s examination before trial (§ 872, Code, subd. 4), therefore both orders are affirmed, with costs.

Conlan, J., concurs.

Orders affirmed, with costs.  