#### ERWIN DAVIS, Appellant, *v.*LELAND STANFORD, Respondent.

*■Order for the examination of a pa/rty before trial*— *when one partner, seeking to compel a settlement of partnership*accounts, *may examine a defendant co-partner*— the *sworn denial Try the party sought to he examined, of any information as to the subject of the*examination, *does not constitute a ground for denying the application —Code of Civil Procedure, sec.*872.

Appeal from an order vacating an order for tbe examination of tbe defendant before trial.

Tbe action bad been commenced by tbe service of a summons, and tbe motion for tbe order was made before any complaint bad been served.

The court at General Term said: *“*The action has been brought to obtain a settlement of copartnership accounts, and to recover a balance which it has been stated is owing to tbe plaintiff out of the proceeds of tbe joint business. He is stated in his affidavit to have become the owner of a sixth interest in tbe business and that its object was the construction of. a line of railway with numerous branches and ancillary woi’ks, and the scheme which is now known as the Central Pacific Railway, and for the financiering and development of such scheme. The affidavit upon which the order was made complies with all the formal requirements of section 872 of the Code of Civil Procedure; and it also contains the statement that the plaintiff had demanded from the defendant an accounting of the affairs, business and profits of the partnership and the payment to him of his share, and that the defendant had refused to comply with the demand. To show that the examination of the defendant' as a witness was material and necessary to enable the plaintiff to frame his complaint and for the prosecution of his action, it was further stated in the affidavit that he was unable to frame his complaint without knowing who were and have, since the formation of the partnership, been the parties interested in these enterprises, and that he himself does not possess the knowledge or information which is necessary intelligibly to state these matters. It was further stated that they were within the personal knowledge of the defendant, and that he was in the possession and control of *532tbe books of account and records of the business and its transactions, and tbe profits resulting from it; that they were not known to himself, and that it was material and necessary for him to examine the defendant as a witness before trial to acquire this knowledge from him, and in that manner to secure the ability properly to frame his complaint in the action. From these statements and others elaborating them, as they are contained in the affidavit, a case was-made entitling the plaintiff to an order for the examination of the-defendant. The plaintiff had not participated in the business or any part of its active management, but that, according to the affidavit, had been confided more especially to the defendant and other persons with whom he was believed to have co-operated. And while the plaintiff may be entitled to his share of the profits of the adventures of the business, he was not in a condition in which he could legally state his case entitling himself to any relief of that description. For the information requisite for that purpose he was dependent wholly upon the defendant, as the case was stated in his affidavit. And without the information there is reason to believe the defendant could supply, the action could not be placed in the legal form adapted to the relief which the plaintiff might be entitled to upon the facts as he may ultimately be able to establish them in the suit. It has been further stated in the affidavit that the examination of the defendant is desired for the mere purpose of acquiring this information and to enable him to proceed with the prosecution of his action. In these respects the affidavit complied with all that has been required to entitle the plaintiff to the examination of the defendant under this section of the Code. And when the case has been so presented, section 873 has declared that the order for the examination must be made, as it was by the judge, to whom the application was made.

“ The defendant has denied in his affidavit the partnership or adventure relied upon by the plaintiff, and his ability to furnish the information required by the examination defined in the order. But when a case for the defendant’s examination may be legally made-out, the Code has not provided that it shall be liable to be defeated by the denial of the party to be examined, of his ability to supply the information. The mode in which his ability is to be tested and determined is that of the oral examination prescribed by the pro*533visions of the Code. "When a proper case has been made out the party making it and entitled to take the examination of the defendant has the legal right to an opportunity to obtain the information in this manner, and he cannot be deprived of that right by the •sworn affidavit of the person to be examined that he would be unable to supply the information. What the law has provided for is his oral examination and his deposition taken in that manner. 'The party seeking that relief is not obliged to accept his affidavit denying his ability to supply the information in place of his •deposition.”

*Joseph H. Choate*and *C. B. Alexander,*for the appellant.

*F. N.*Bangs, for the respondent.

Opinion by

Dahtels, *J.;*

Davis, P. J., and Beady, J., concurred.

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