(8 App. Div. 316)

#### SAVAGE v. NEELY.

(Supreme Court, Appellate Division, First Department.

July 31, 1896.)

1. Examination op Party before Trial—Affidavit.

An affidavit of the examination before trial of defendant in an action for an accounting as to books sold by defendant under a royalty contract *947is sufficient where it states that deiendant’s testimony is material and necessary; that plaintiff expects to prove the number of books printed, the number sold, to whom sold, the amounts received therefor, the number of books on hand, and the amount of all charges against defendant, and the nature of the same; and that such facts are Avithin the knowledge of defendant, but not within the knowledge of plaintiff; and that the testimony of defendant is taken for the purpose of being read on the trial of the action,

*H.*Same—Subpoena Duces Tecum.

Though plaintiff, on an application for the examination of defendant before trial, cannot have a discovery of books and papers, he may laws a subpoena duces tecum to compel defendant to bring his books and papers, in order that plaintiff may, on the examination of defendant, prove any entry tending to substantiate his claim.

Appeal from special term, Aery York county.

Action by Bichard Henry Savage against Frank Tennyson Neely .for an accounting, and for an adjudication that a certain agreement is null and void. From an order vacating an order for the examination of defendant before trial, and a subpoena duces tecum, plaintiff appeals. Reversed.

Argued before BARRETT, RUMSEY, PATTERSON, and INGRAHAM, JJ.

C. Bainbridge Smith, for appellant.

Burnett, Stayton & Hagen, for respondent.

PER CURIAM.

The plaintiff is an author and the defendant a publisher. They entered into an agreement whereby the defendant was to publish the plaintiff’s works, and to pay the plaintiff a specified royalty upon the books sold. The plaintiff, in his complaint, asks for an account of all the books sold by the defendant under this contract. In such an action, upon proper papers, the right to an examination before trial is almost a matter of course. The plaintiff here states that the defendant’s testimony is material and necessary for the prosecution of the action; that he expects to prove by the examination “the number of books printed; the number of books sold, to whom sold, and the amounts received therefor; the number of books on hand, and the number of damaged books returned; and the amount of all charges and claims against the plaintiff, and the nature of the same.” He also avers that the facts which he thus expects to proA'e are “within the knowledge of the defendant, but are not within the knowledge of the plaintiff, and the testimony of the said defendant is taken for the purpose of being read by and on the part of the plaintiff on the trial of this action.” This was amply sufficient to entitle the plaintiff to an order for the examination of the defendant before trial. As to the subpoena duces tecum, it is sufficient to say that, while the plaintiff cannot, in this proceeding, have a discovery of books and papers, he may, upon the examination of the defendant, prove any entry or paper tending to substantiate his claim. To effectuate this, a subpoena duces tecum is appropriate. The use which may be made of such books and papers upon the examination is stated in Horst v. D. G. Yuengling Brewing Co., 1 App. Div. 629, 37 N. Y. Supp. 3.

*948The order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate the order for the examination of the defendant, and the subpoena duces tecum, denied, with $10 costs; and a day will be fixed in the order for the examination.