#### Dennis Leary, Plaintiff, *v.*Edward C. O'Brien, Defendant.

(Supreme Court, New York Special Term,

December, 1900.)

Examination o£ defendant before trial — Insufficient allegations — When refused.

An examination of the defendant before trial will not be permitted the plaintiff upon his allegations that the parties as partners promoted and organized an express company, that the express company paid certain compensation to the defendant for these services, and that the plaintiff seeks an accounting as to the compensation and his share thereof, where it does not appear that he has made any effort to acquire the knowledge he seeks, nor that the defendant has any more knowledge of the facts than has the plaintiff, his partner.

Such an examination will not be granted in order to enable the plaintiff to ascertain whether he has a cause of action, nor to make the trial easier or more convenient for him.

Hotion for an examination of defendant before trial.

G. D. B. Hasbrouclc, for plaintiff.

Peckham, Hiller *&*King (Wheeler H. Peckham, of counsel), for defendant.

Blanchard, J.

To entitle the plaintiff to prevail on this motion, it is essential that the mind of the court should he satisfied, from the statements made in the plaintiff’s affidavit, upon which he bases his application, that the testimony of the defendant is material and necessary for the plaintiff or the prosecution of the action. And the affidavit should specify the facts and circumstances which show that the examination of the defendant is material and necessary. The application is addressed to the discretion of the court (Jenkins v. Putnam, 106 N. Y. 272), and it is the duty of the party seeking the examination to set forth in his motion papers a full and frank statement of all the facts and circumstances, which wiH show that an actual necessity exists for the examination of his adversary out of the usual order at the trial. The plaintiff’s affidavit does not meet these requirements. It sets forth a copy of the *500complaint herein, in which it is alleged that a partnership was formed between plaintiff and defendant for the purpose of organizing, promoting and incorporating an express company, and that such a company was organized as a result of the combined efforts of the plaintiff and defendant. It is further alleged in the complaint, but on information and belief, that the express company delivered to the defendant certain money, stocks or other securities, which it agreed to transfer and deliver to the plaintiff and defendant by way of compensation for organizing and promoting said corporation, and that the defendant received the same from the company, and now holds the same. The plaintiff brings the action to compel the defendant to account for and pay over to the plaintiff his share of the said money, stocks or other securities. The answer is a general denial. The affidavit further sets forth certain reasons why the plaintiff deems an examination of the defendant before trial to be material and necessary. Hone of the reasons is, in my judgment, sufficient as a statement of fact and circumstances to establish the necessity and materiality of the examination sought by the plaintiff. It would seem rather that the plaintiff seeks the testimony of the defendant to ascertain whether or not the plaintiff has a cause of action, or to make the preparation of the trial more easy and convenient for him. This is not the purpose of the statute under consideration. It should be invoked only when an actual and urgent necessity arises for an examination of the party before trial. The statute, wisely does not attempt to specify the particular cases when the examination may be properly ordered, because the facts and circumstances upon which the propriety of the examination depends will differ more or less in every case. But the statute and the rules of practice do require positively that the papers used on the application should show the particular facts and circumstances which make that examination both material and necessary to the moving party. It is true, in this case, that the plaintiff’s affidavit states that all the facts about which he desires to attain information on an examination of the defendant are at present within the knowledge of the defendant, and not within the knowledge of the plaintiff. That may be the correct statement of a fact, but there is no statement of any facts or circumstances which explains why this ignorance on the part of the plaintiff exists. It does not appear that the plaintiff has made any efforts himself to acquire the information which he seeks, or that the testimony *501of the defendant is the sole source of proof of the facts about which the plaintiff states he has no knowledge. It would seem that, if he was a partner with the defendant in the business of organizing an express company and promoting its business, he should have as much knowledge and information about the facts concerning which .he seeks to examine the defendant as the defendant himself. Where, from the nature of the controversy, it is apparent that the facts of the case are probably within the knowledge of the moving party, no facts and circumstances appearing to the contrary, the application for an examination of the adverse party before trial should be denied. Jenkins v. Putnam, *supra.*

Motion denied.