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Anderson v. Mackay.

(Circuit Court, S. D. New York.

April 27, 1891.)

Discovery — Practice—Examination or Flaintiit.

A plaintiff may, in an action at law in a federal court, obtain an order for the examination of the defendant, to enable the plaintiff to frame his complaint, where such an order is provided for by the state Code of Procedure.

At Law.

Smith & P&rldns, for complainant.

Robt. H. Griffin, for defendant.

Laoombe, Circuit Judge.

The decision in Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. Rep. 724, does not cover an examination of a defendant to enable plaintiff to frame a complaint, nor do any of the other cases cited hold that such an examination cannot be held in a federal court, in an action at law, when it could be had in the state court under state practice. The reason for reversing the decision of this court assigned in Ex parte Fisk, viz., that the federal statutes had specially provided a different mode of taking testimony to be used on the trial, does not apply in this case, where no such different mode has been specially provided. The order may stand, but the'examination must be confined strictly to an inquiry whether the defendant purchased any stock of the company personally, or whether he had any interest in any stock purchased by others, or exercised any control over them or not.

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