Borger v. Ruegg , 272 A.D.2d 917 ( 1947 )

In an action to recover damages for breach of an alleged contract, order denying defendant’s motion for an examination before trial of the plaintiff as an adverse party reversed, with $10 costs and disbursements, and the motion granted, without costs, the examination to proceed on five days’ notice. Inasmuch as defendant assumes the affirmative of establishing illegality of the alleged contract, the examination should have been granted. Hagarty, Acting P. J., Carswell, Adel, Rolan and Sneed, JJ., concur.