Schmitt v. Morgan

— Appeal from an order of the Supreme Court at Special Term (Smyk, J.), entered July 1, 1982 in Delaware County, which conditionally denied plaintiff Schmitt’s motion to dismiss an affirmative defense and counterclaim contained in the answer of defendant Morgan. Plaintiff Schmitt is the trustee in bankruptcy of Charles L. Tellerday. The record reveals that by an order dated March 25, 1982, Special Term directed defendant Morgan to submit to an examination before trial as a condition precedent to the denial of plaintiff Schmitt’s application to strike an affirmative defense and counterclaim…