#### Hartog *&*Beinhauer Candy Company, Appellant, *v.*Richmond Cedar Works, Respondent.

First Department,

March 6, 1908.

Deposition — examination of party before trial — discovery of adversary’s casé.

In an action for damages caused by the defendant’s failure to deliver pails ás agreed, whereby the plaintiff was unable to perform contracts for sale and delivery made with other parties, lost customers, and was obliged to deliver its products at a greater expense, of which damage a bill,of particulars has been furnished, the defendant is not entitled to examine the plaintiff before trial, and after issue joined, for the purpose of obtaining the items and details which go to make up the damage claimed.

The Code of Civil" Procedure (§ 872) allows the examination of the adversary before trial where the testimony is material and necessary to the party making the application for the prosecution *or defense*of the action, and as it is no part of a defendant’s case to establish the items of the plaintiff’s damage, an examination to discover the same is not proper.

Ingraham, J., dissented, with opinion.

Appeal by the plaintiff, the Hartog *&*Beinhauer Candy Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of January, 1908.

*Elmer 8. White [8ól L. IToungentob*with him on the brief], for the appellant.

*Edward 8. Seidman [Henry Wollman*and *GUnion T. Roe*with him on> the brief], for the respondent.

Clarke, J.:

Appeal from an order of the Special Term .denying a motion to vacate an order obtained by the defendant for examination of the plaintiff, a corporation, and certain officers thereof before trial and after issue joined. The action is for damages for breach of contract.

The plaintiff alleges in its complaint that the defendant failed to supply it with certain cedar pails needed for use in its candy business; that because of defendant’s failure to deliver these pails *628plaintiff was unable to perform pertain agreements for the sale and delivery of candies; that plaintiff lost certain customers thereby; that it was obliged to deliver-some of its product in tin pails, pay- ■ ing therefor a price in excess of the amount at which defendant promised to deliver cedar pails. There were other allegations of damage. The plaintiff lias furnished a bill of particulars. A case is presented .where a bill of particulars is proper and if the bill furnished is not sufficient a motion for a further bill might be made.

■ The examination which the defendant desires, as appears by- the affidavit submitted upou its application, is for the purpose of obtaining the items and the details which go to make.up the damages claimed by the plaintiff. It is, therefore, an attempt to obtain information before the trial of necessary parts of the plaintiff’s case which the plaintiff must establish by proof in order to succeed. There is nothing asked for which is material and necessary to the defense interposed. It is even averred in the affidavit “ That in the opinion of deponent it is necessary and material that the annexed order, in order that -the facts in reference to plaintiff’s alleged cause of action * * * may be properly presented to this court •* * * should be granted.”

The Code provides that the examination of an adverse party may be obtained when the testimony .of such person is material and necessary for the party making such application for the prosecution or defense of such action. (Code Civ. Proc. § 872.)

This court said in *Dudley*v. *New York Filter Manufacturing Co.*(80 App. Div. 164): “The rule, however, with reference to allowing the examination of a party is quite different. Such examinations are never allowed where the object is to obtain information concerning an adversary’s case or defense; nor are they allowed merely for' the purpose of enabling a party to prepare for trial. * * * They are only allowed where the object.is to obtain evidence essential to the moving party’s case or defense, and when it fairly appears that it is the intention of the party to rise the examination upon the trial. * * * Where it appears that the testimony is material and is necessary to enable the applicant to establish his own case or defense, it is no objection to the examination that it may disclose his adversary’s case.” This proposition. was cited with approval in *McKenna*v. *Tully*(109 App. Div. 598).

*629In *Oakes*v. *Star Company*(119 App. Div. 358) we said: “ Ifc is still necessary to show, by the recitation of appropriate facts and circumstances, that the testimony sought to be elicited is material and necessary for the party making the application (Code Civ. Proc. § *872,*subd. I; Gen. Rules Pr. rule 82), and it is incumbent upon the party seeking the examination to make this fact appear; ” which proposition was reasserted in *Wood*v. *Hoffman Co.*(121 App. Div. 636).

As it is no part of the defendant’s case to establish the items of the plaintiff’s damage, the order providing for the examination- of the plaintiff through its officers for the purposes here disclosed was not authorized.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the original order granting the examination vacated and set aside, with ten dollars costs to the appellant.

Patterson, P. J., McLaughlin and Scott, JJ., concurred; Ingraham, J., dissented.

Ingraham, J. (dissenting):

I think this order in requiring the plaintiff to produce upon the examination all its books and papers cannot be sustained, as the affidavit was not sufficient to require the production of any particular book or paper as necessary for the.examination of the plaintiff. It should, therefore;, be left to the referee to direct the production of any book or paper that is necessary for the proper examination of the witnesses. I think, however, that the affidavit was sufficient to justify the court in directing the plaintiff to be examined as a witness before trial. It is true the principal affidavit upon which the order was granted was made by the defendant’s attorney, but this affidavit was corroborated by the affidavit of the defendant’s representative in the city of New York, and the attorney and this representative were the only ones who knew anything about the action or had cognizance of the facts required to be sworn to. The defendant was a corporation and could not make an affidavit. It had, therefore, to be made by its officers; agents or representatives, and these two representatives, its attorney and agent in New, York, were the only persons who could really depose to any-facts *630that had any relevancy to the application. It is quite true that the affidavit of the defendant’s attorney states that the examination, was necessary and material for other purposes than that prescribed by the Code of Civil Procedure, but enough is stated to show, in view of the counterclaim interposed by the defendant, that the examination of the plaintiff as a witness before trial was material and necessary to enable the defendant to procure testimony to be used at the trial. It is quite as easy to criticize these affidavits as it is to cite cases which would show that tío order for the examination of any witness before trial should ever be granted ; but the Code is mandatory and where it appears that the testimony of an adverse party' is material and necessary for the party applying, I think the examination' should .he allowed. These statutes provide a méthod of taking an examination of the adverse party before the trial rather tlian at the trial. There can be no question but that the defendant could call an officer of the plaintiff to prove the facts as to -the making of this contract and to the delivery to the plaintiff of goods, wares and merchandise under it, and that the defendant was not guilty of a breach of the contract or was éxcused from its • full performance. I think upon those facts being shown the defendant was entitled to an order 'for the examination of the plaintiff before trial, notwithstanding the fact that the defendant’s attorney lias inserted, in his affidavit upon which the order was granted several allegations which tend to show that he also desired by this examination to ascertain what his opponent would swear to as to the amount of damages that it.was claimed the plaintiff had sustained by a breach of the contract. I have never seen any advantage gained by refusing to allow these examinations before trial or any injury result to a really just demand or defense where one has been allowed ; hut it is common to see a just claim or just defense defeated because of the lack of evidence which such an examination would have furnished at the trial. It seems to me that this is a case where-the ends of justice would he promoted by allowing each of the parties to examine the other before trial.

I, therefore, think the order should be affirmed. ■

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. .