Fulton v. National Aniline & Chemical Co.

We have reached the conclusion that the learned Special Term was in error in denying defendant’s motion to examine the plaintiff’s assignor under section 288 of the Civil Practice Act. The moving papers disclose that the testimony sought is “ material and necessary ” to the defendant in establishing its affirmative defenses. The testimony of the plaintiff cannot be material and *847necessary and he should not be examined. Under the circumstances of this case we think that Justin F. Wait is a proper person to be examined under section 289 of the Civil Practice Act. According to the moving papers…