The motion before the court was that the answer of defendant be stricken out for refusal to testify as directed by the court, or for such other or further relief as the court may see fit to grant. The costs of this motion, like all others, were in the discretion of the court, and although the court saw fit to make an order more favorable to the defendant than the one sought for it did not thereby lose its power to impose on him the costs of the motion.
*544The questions propounded on the second examination were at least in one respect identical with those ruled upon by Mr. Justice DoyOHUE, and were all substantially in the line of propriety, as marked out by his opinion. They would have been proper on a trial of the action at special term before the court, sitting in equity, and were therefore competent on the examination under the 190th section of the Code. It may be true that a valid assignment is not avoidable by the subsequent fraud, or misconduct of the assignee; but where the issue is upon the validity of the instrument itself, for fraud, it is competent to show the disposition of the assigned property by the assignee, as tending to throw light upon the alleged invalidity of the assignment. Especially is this so when the fraud alleged is that the. preferences, to the assignee, are of fictitious debts, or of debts that had already been wholly or in part paid.
We think the questions were competent and that the order of the court below was proper, and should be affirmed, with costs.