
    SUPREME COURT.
    Kane agt. Clarke.
    
      Code of Civil Procedure, section 870 — Skcamination of parly before trial— What must be shown to entitle party to order.
    
    Where the complaint is on a promissory note and no answer has been put in, and it is sought to examine the defendant as to the consideration of the note, the plaintiff should show a reasonable expectation on his part that the consideration is to be denied, to entitle him to the order.
    
      Oneida Special Term,
    
    
      February, 1885.
    Motion by defendant to vacate an order obtained by plaintiff for the examination of defendant under section 870, &c.
    
      
      Mr. Jenlcins, lor motion.
    
      Mr. Brodies, opposed.
   Merwin, J.

It seems to me that this order cannot stand. The complaint is on a promissory nota No answer has been put in. The plaintiff seeks to examine defendant as to the consideration of the note.

There is nothing to show what the. defense is to be. The plaintiff should, I think, show a reasonable expectation on his part that the consideration is to be denied. This he has not done.

Motion to set aside granted, with costs of motion.  