Adams v. Cavanaugh
New York Supreme Court
Appeal from an order made at a Special Term, vacating an order requiring the defendant to appear and be examined before trial. This action is brought by a mortgagee against a mortgagor and his wife, to foreclose a mortgage for the non-payment of annual interest. But two defenses are interposed: (1.) That the interest has been paid. (2.) That the mortgage is usurious.
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Appeal from an order made at a Special Term, vacating an order requiring the defendant to appear and be examined before trial. This action is brought by a mortgagee against a mortgagor and his wife, to foreclose a mortgage for the non-payment of annual interest. But two defenses are interposed: (1.) That the interest has been paid. (2.) That the mortgage is usurious. After the issue of fact was joined, the plaintiff obtained upon an affidavit and the pleadings, an ex pivrte order from a justice of this court, for the examination of one of the defendants (the mortgagor) before a referee…
1Opinion of the Court
Follett, J.:
In chancery the right of a party to a discovery did not extend to all facts material to the issue, but was limited to such material facts as were necessary to establish his cause of action or defense. (Story’s Eq. Pl., § 572; 1 Pom. Eq. Juris., § 201; Hare on Dis., 198; 2 Barb. Ch. Pr., 101; 1 Dan. Ch. Pr., 606; Deas v. Harvie, 2 Barb. Ch., 448.)
By section 389 of the old Code, bills of discovery were abolished, and by section 390 the examination of adverse parties was authorized. The subjects upon which parties might be examined were not prescribed, nor was the extent to which…
2Cases cited9 opinions
- Glenney v. . StedwellNew York Court of Appeals · 1876
- Heishon v. . Knickerbocker Life Insurance Co.New York Court of Appeals · 1879
- Phœnix v. DupuyNew York Court of Common Pleas · 1877
- Schepmoes v. BoussonNew York Court of Common Pleas · 1877
- Carr v. Great Western InsuranceNew York Court of Common Pleas · 1869
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