#### Herman T. Sherman, Respondent, *v.*Samuel Einhorn and William Einhorn, Appellants.

First Department,

June 12, 1914.

Deposition — examination of defendant before trial — inspection of books and papers not authorized — practice — subpoena duces tecum.

Section 873 of the Code of Civil Procedure, requiring a defendant to submit to an examination before trial, does not authorize a direction that he produce his books and papers for any purpose.

*816If it appear upon the examination that he is unable to testify from his recollection and that he can answer by referring to his books, plaintiff may procure then- production in order to aid the memory of the witness by subpoena *duces tecum.*

Appeal by the defendants, Samuel Einhorn and another, 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 19th day of September, 1913, denying a motion to vacate or to modify an order for the examination of the defendant William Einhorn before trial.

*Morris*Cukor, for the appellants.

*Jacob M.*Schoenfeld, for the respondent.

McLaughlin, J.:

Action to recover damages for breach of a contract of employment, plaintiff alleging that defendants employed bim as a manager and salesman at a salary of fifty dollars per week, plus five per cent commission on all sales and reorders made and procured by him directly or indirectly in certain cities and their vicinity. The answer admitted that during the time mentioned plaintiff was in the employ of defendants as general clerk and salesman, and as such made and procured certain sales and reorders of defendants’ merchandise, for which he was paid fifty dollars a week; denied the other material allegations of the complaint; and alleged, as a separate defense, payment in full for all service rendered by him. After issue had been joined the plaintiff obtained, *ex parte,*an order directing one of the defendants to submit to an examination as an adverse party, before trial, concerning the orders for sales of merchandise accepted by defendants from various persons, firms or corporations in the cities referred to and their vicinity, and the persons to whom, and the dates when, said sales were made; also to produce, for the purpose of such examination, certain specified books relating to their business.

The defendant moved to vacate the order, or, in the alternative, to modify it by limiting the examination to the sales and reorders made and procured by the plaintiff directly or indi*817rectly and by striking therefrom the provision requiring the production of the books and papers.

I think the motion to modify should have been granted. The only sales or orders in which the plaintiff is interested are those made or procured by him directly or indirectly, and the examination should be limited thereto. The plaintiff has no interest, according to the allegations of the complaint, in the orders, accepted by the defendants from other persons, firms or corporations. It would, therefore, serve no useful purpose to permit an examination as to them.

The provision requiring the production of books and papers is not authorized by the section of the statute under which the order for the examination was permitted. (Code Civ. Proc. § 873.) Upon the examination, if it appears that defendant is unable to testify from his recollection concerning the matters to which the examination is permitted, and that he can answer by referring to the books, then plaintiff may procure their production to aid the memory of the witness by the service of a *subpoena duces tecum.*The section of the Code to which reference has been made only requires defendant to submit to the examination. It does not authorize a direction requiring the party to be examined to produce books and papers for any purpose. *(Gee*v. *Pendas,*87 App. Div. 157; *Matter of Sands,*98 id. 148; *Coin Novelty Co.*v. *Lindenborn,*122 id. 885.)

The order appealed from, therefore, is modified as above indicated, and as so modified affirmed, with ten dollars costs and disbursements to the appellants.

Laughlin, Clarke and Scott, JJ., concurred; Ingraham, P. J., concurred in result.

Order modified as indicated in opinion and as modified affirmed, with ten dollars costs and disbursements to appellants. Order to be settled on notice.