Lemmer v. Metropolitan Life Insurance

Order reversed upon the law and the facts, with ten,dollars costs and disbursements, and motion granted, with ten dollars costs. An inspection of the items in respect to which the examination before trial is sought discloses that they all relate to matter as to which plaintiff has the burden of proof as a part of his affirmative case, and the learned Special Term, under the circumstances, erred in denying the motion to vacate the notice of examination before trial. (Oshinshy v. Gumberg, 188 App. Div. 23.) Lazansky, P. J., Rich, Young, Hagarty and Scudder, JJ., concur.