#### Thomas Ryan, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.

Third Department,

January 8, 1908.

Deposition —negligence — right to examine secretary of railroad before trial as to fitness of engineer -— distinction between " examination of witness and discovery of hooks.

The plaintiff, a railroad employee, iii an action to recover for injuries caused by the collision of two trains, obtained an 'order .permitting the examination of the secretary of the "defendant railroad and requiring the production of all books and papers relating to the carelessness of one of the engineers upon two specified occasions, and all of his negligent' acts previous to the accident in question. The affidavit upon which it was granted did not show what books were required or that.they were in the control of the secretary, and did not allege that his examination would disclose any fact material to the issue. It appeared' that the plaintiff had been twice refused a discovery of the books of the defendant, and that the .examination was .only desired to obtain the benefit of the inspection thereby afforded. •

*Meld,*that the motion for the examination of the secretary should have been denied. . . .

The production and inspection of hooks under subdivision 7 of section 873 of the - .Code of Civil Procedure, which provides for the examination of witnesses before trial, is not intended to take the place of a discovery and inspection under sections 803 to 809, but is designed to obviate the necessity, for a *subpoma duces tecuin.*The two-remedies are distinct. The production of the books is incidental to the examination of the witness, and if no ground is shown -for the examination, their production is unnecessary.

*35Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from an order made by the county judge of Columbia county and entered in the office of the clerk of said county on the 9th day of July, 1907, denying the defendant’s motion to vacate a prior order granted by said county judge for the examination of the defendant corporation, through its secretary, before trial.

*Robert*Wilkinson, for the appellant.

*George K. Daley,*for the respondent.

Kellogg, J.:

The order requires the defendant’s secretary to appear before the 'referee for examination, and that at the same time *“*The defendant corporation produce all books and papers which relate to or have any mention of the carelessness and negligence of - C. Birch as engineer in the employ of the defendant company in October, 1891, and in the summer of 1898, and of any and all other acts of negligence and carelessness of the said C. Birch previous to and including the third day of August, 1903,” and is based upon allegations that one Birch, an engineer of the defendant, negligently ran its train into another of defendant’s trains upon which the plaintiff was an employee, and injured him, and that Birch was a careless and incompetent man to the-knowledge of the defendant; that plaintiff, while an employee of the defendant, obtained information that said Birch “while in the employ of the aforesaid railroad company ran by signals set for danger as engineer contrary to the rules of the aforesaid railroad at Yonkers, Hew York, on or about August, 1891, and a wreck resulted, and that in the summer of 1898, but the exact date your deponent does not know, the said Bird), while in the employ of said railroad company, ran a Harlem train past signals set for danger, contrary to the rules of the aforesaid company, upon the Hew Haven railroad, and these acts of carelessness, negligence and incompetency must have come to the knowledge of said railroad. company defendant, as Well as other acts of carelessness while in defendant’s employ, and this testimony is either within their knowledge or the evidence of same is contained in boobs and papers *36of this defendant company. For the purpose of obtaining the aforesaid evidence and- to' show that the defendant company had knowledge' of the incompetency of the aforesaid C. Birch, the testimony of the defendant company, through its secretary, Dwight W. Pardee., is necessary and material, as the principal point in the plaintiff’s case is to show the incompetency of the said Birch, and that the knowledge of such incompétency was known to the defendant company at the time of the accident complained of in plaintiff’s complaint. That this evidence cannot be obtained in any other way, as this plaintiff has made diligent effort to ascertain the whereabouts of the aforesaid C. Birch, and is informed and believes that he is not a resident of this State, and he has no means of ascertaining,his present residence and that his residence is unknown.” The affidavit also states that plaintiff cannot procure the aforesaid evidence unless the same be disclosed by an examination of the defendant as prayed for.

Plaintiff made a prior application to the/court under sections 803 to 809 of the Code of Civil Procedure, seeking a discovery of the same books and papers, which motion was denied with leave to renew upon further affidavits. Thereafter, upon affidavits substantially like those used here, he made another application for'' such discovery, which was refused without leave to renew. It does not appear that the secretary of the New Yórk Central railroad has any personal knowledge of the matters referred to, and his examination is only desired to obtain the benefit under subdivision 7 of section 872 of an inspection of the books and papers of the company which has by a previous order of the court been denied. The production and inspection of the books under subdivision 7 of sdction 872 is not intended to take the place of the discoveiy and inspection under sections 803 to 809, but is to obviate the necessity of a *subpoena duces tecy/mr*and the production of the books may be ordered so far as necessary for the examination of the witness produced. The production of the books is- incident to tlie examination, and if no ground is shown for the examination of the witness, then the production of books is unnecessary. Two distinct remedies' are provided — one is for the inspection of books and papers; the other is for the examination of a necessary and material witness, and to compel him to produce such books as may be necessary and *37proper to' give force to or explain his testimony. *(Matter of Thompson,*95 App. Div. 542.)

Plaintiff’s attorney, in his affidavit, practically recognizes this situation by suggesting that the books and papers may be necessary to refresh the witness’ recollection, and that the witness may need them to aid him in his oral examination. He does not, however, suggest any fact proposed to be established by the oral examination of the witness.

We may assume that a liberal rule has been established relating to the examination of a party before trial by his adversary. *(Goldmark*v. *U. S. Electro-Galvanizing Co.,*111 App. Div. 526; *McKeand*v. *Locke,*115 id. 174; *Meade*v. *Southern Tier Masonic Relief Association,*119 id. 761.) But this order goes beyond any limit heretofore' suggested. Subdivision 4 of section 872 of the Code of Civil Procedure requires that the affidavit shall set forth that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action. And rule 82 of the General Rules of Practice requires that the affidavit shall specify the facts and circumstances which show that the examination of the person is material and necessary. The affidavit here does not allege that the examination of the officer or the books will disclose any fact material to the issue. It states two prior accidents followed by the conclusion that the books of the company should show the particulars of them and the incompetence and carelessness of Birch. The examination is not to establish a fact within the defendant’s knowledge, but is a fishing excursion to see whether the defendant’s books may possibly disclose certain information without any facts which make it probable that such information will he disclosed.

The accident for which recovery is sought occurred in August, 1903, and it is sought here to compel tlfe secretary of the New York Central railroad to produce books and papers relating to any and all accidents which may have occurred on said railroad in which said Birch may be claimed to have been connected in any way during the time of his employment up to that date. There is no suggestion as to what hooks are required, or that the particular books or papers are within the custody or control of .the person sought to be examined. The proposed examination would he oppressive and *38unreasonable, and is evidently not for tlie purpose of obtaining evidence for use upon the trial. The order should, therefore, he reversed, with ten dollars costs, and the motion to vacate the original order granted, with.ten dollars costs.

All concurred, except Cochrane, J., not voting.

Order reversed, with ten dollars costs and disbursements,. and motion to vacate original order granted, with ten dollars costs.