
    Anna Stevens, Appellant, v. Arthur T. Weygandt, Respondent.
    
      (Supreme Court, App. Div., Second Department,
    
    
      July 31, 1914.)
    Practice—Examination of Defendant before Trial in Action to Eecover Monet Loaned.
    Where in an action to recover an alleged loan by the plaintiff to the defendant, who was in her employ at the time and had sole charge of certain improvements being made upon premises owned by .her, it appears that the defendant is the only person by whom the plaintiff can establish that the loan was not in fact for her benefit and use in the improvement of her property, she is entitled to an examination of the defendant before trial, but such examination should be limited to the particular transaction which resulted in the alleged loan.
    Burr, J., dissented.
    
      Appeal by the plaintiff, Anna Stevens, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of May, 1914.
    Julius Kendler and A. Joseph Geist, for the appellant.
    Fred L. Gross, for the respondent.
   Rich, J.

The plaintiff appeals from an order of the Special Term vacating an ex parte order for the examination of the defendant before trial. The action is brought to recover an alleged loan of $1,000, which is denied by the answer. The affidavit of the plaintiff upon which the order for the examination was granted was sufficient, and the order from which this appeal is taken was improperly made. It is shown and not denied that the defendant was in her employ at the time the loan was made, and had the sole charge of alterations and improvements being made upon premises owned by her; that at defendant’s request she gave him the $1,000, which she understood to be a loan to him which was to be repaid.

As part of plaintiff’s affirmative case, it is necessary that she should prove that the money which she delivered to the defendant was a loan, made upon his agreement, express or implied, to repay the same, and this distinguishes the case at bar from the authorities relied upon by the respondent. It seems that the defendant is the only person 'by whom she can establish this fact and show that the money advanced was not in fact for plaintiff’s benefit and used in the improvement of her property. I think that the plaintiff is entitled to the examination of the defendant before trial (Tisdale Lumber Co. v. Droge, 147 App. Div. 55; Kornbluth v. Isaacs, 149 id. 108; McKeand v. Locke, 115 id. 174; Richards v. Whiting, 127 id. 208; Shonts v. Thomas, 116 id. 854; Donaldson v. Brooklyn Heights Railroad Co., 119 id. 513; Koplin v. Hoe, 123 id. 827; Cherbuliez v. Parsons, Id. 814), but that the examination should be limited to the transaction between the parties which resulted in the alleged loan.

The order must, therefore, be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term to fix a day when the defendant shall appear for examination under the original order of May 9, 1914.

Thomas, Carr and Stapleton, JJ., concurred; Burr, J., dissented.

Order reversed, with ten dollars costs and disbursements, and proceedings remitted to the Special Term to fix. a day when the defendant shall appear for examination under the original order of May 9, 1914.  