
    Robert I. Curran, Appellant, v. August Oppenheimer and Others, Respondents.
    First Department,
    March 10, 1911.
    Discovery — examination before trial — admissions in pleading.
    An order for the examination of a defendant before trial should not be vacated because he has made certain admissions in his answer, for the plaintiff is not bound to accept the defendant’s allegation of his knowledge or lack of knowledge.
    ' Appeal by the plaintiff, Robert I. Curran, 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 12th day of January, 1911, as resettled by an order entered on the 8th day of February, 1911, vacating an order for the examination of the defendant Oppenheimer before trial.
    
      Alexander S. Andrews, for the appellant.
    
      Eugene G. Kremer, for the respondent.
   Dowling, J.:

The order for the examination of the defendant Oppenheimer was made upon affidavits showing the necessity and materiality of the matters upon which examination was sought, not' only in support of the allegations of the complaint, and to disclose proof relevant thereto, but to avoid an alleged defense set up by Oppenheimer, who alone has been served with the summons herein. It also is averred that the plaintiff intends to use the testimony thus elicited upon the trial of the action. Defendant resists this examination for the reason, among others, that lie has made certain admissions in his answer, because of which no examination should be had. But we are of opinion that plaintiff is not bound to accept the statement of defendant’s knowledge or lack of knowledge as therein contained, but is entitled to the examination, having in all respects set forth the facts necessary to entitle him thereto.

The order vacating and setting aside the order for defendant’s examination must, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs, and the examination reinstated, time of examination to be fixed on settlement of order.

Clarke, McLaughlin, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and examination reinstated, time of examination to be fixed on settlement of order. Settle order on notice.  