
    Samuel Fox, Respondent, v. Warner Miller, Appellant.
    
      Usury — examination of the plaintiff before trial — objection that it will require the disclosure of facts constituting a crime.
    
    Where an order for the examination before trial of a plaintiff, bringing an action upon a promissory note, is based upon an affidavit of the defendant alleging that he will rely upon the defense of usury; that he is ignorant of the details of the transaction and of the facts necessary to be pleaded in connection therewith, and has no other means of ascertaining them, the plaintiff cannot successfully resist such examination by asserting that the examination will compel him to disclose facts which will constitute a criminal offense, where there is nothing in the record to show that the crime of usury, as defined by the statute, has been committed.
    Appeal by the defendant, Warner Miller, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of June, 1897, vacating an order for the examination of the plaintiff before trial.
    
      Frank Walling, for the appellant.
    
      Edgar L. Nathan, for the respondent.
   Per Curiam :

The order for the examination of the plaintiff was properly granted. The defendant by bis affidavit showed that the note was diverted by Brandreth, and that the defense of usury would be relied upon and also that he was ignorant of the details of the transaction, and of the facts' necessary to he pleaded in connection with that defense. The plaintiff objected '.to the order on the ground that the. examination would compel the disclosure of facts which would constitute a criminal offense. There is nothing in the record before us to show that the crime of. usury has been committed ; that anything was received by the plaintiff for the loan or forbearance of any money, or that any facts existed which would render the plaintiff liable to criminal prosecution under the statute. The defense of usury could .be based alone upon a corrupt agreement to receive more than six per cent for the loan or forbearance of money, and the proof of such an agreement would be sufficient to establish that defense.

The affidavits upon which the order for examination was granted show that the defendant has no other means of ascertaining the facts necessary, to be pleaded, by him in setting up the defense of usury than by an examination of the plaintiff to elicit those facts which are especially within his knowledge: '.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present—Patterson, Rumsey, Williams, O’Brien and Parker, JJ.

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