#### Harriet C. Sprague, Respondent, *v.*Walter J. Currie and Others, Copartners, Doing Business under the Firm Name of Currie & Boyce, Appellants.

First Department,

December 24, 1908.

Discovery— examination of party before trial — when motion premature.

Where a complaint asking an accounting by an agent has been served and a demurrer thereto is pending so that as yet there are no issues of fact to be tried, the plaintiff is not entitled to examine the defendant before trial, even though it be alleged that the demurrer was interposed for purposes of delay.

Appeal by the defendants, Walter J. Currie and others, copartners, etc., from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 30th day of October, 1908, denying the defendants’ motion to vacate an order for the examination of two of the defendants before trial.

*Walter W.*Irwin, for the appellants.

*Paul Eugene*Jones, for the respondent.

Ingraham, J.:

The complaint alleges that the defendants are copartners, carrying on business as stockbrokers in Mew York, and as such had in ‘their possession certain stocks and bonds, the property of the plaintiff, which were held by the defendants as collateral security to secure an indebtedness of the plaintiff to the defendants of upwards *366of $9,000; that the plaintiff demanded that the defendants transfer these securities to another firm of stockbrokers upon payment of the debit balance which then amounted to $8,815.95, and that the defendants delivered the securities aforesaid belonging to the plaintiff to said firm on the payment of such balance; that the defendants, prior to the 18th day of November, 1907, sold or converted to their own use some or all of the said securities belonging to the plaintiff, and that for the purpose of making such delivery repurchased or reacquired the same at lower prices, the dates and amounts of which are unknown to the plaintiff, whereby the defendants, while acting as brokers or agents for the plaintiff, realized or obtained secret profits, to the plaintiff unknown, which profits were concealed from the plaintiff and were never credited to her account. The judgment demanded is that the accounts between the plaintiff and the defendants be taken and stated and that they be reformed by charging to the defendants and crediting to the plaintiff the value of any securities belonging to the plaintiff and converted by the defendants at the dates of the several conversions thereof. To this complaint the defendants demurred, which demurrer appears to have been undisposed of. The plaintiff then, upon an affidavit alleging that the demurrer was interposed for delay, asked for an examination of two of the defendants before trial.

It is clear that this order was not justified until there was an issue of fact to be tried. The examination of the defendants was not necessary to frame the complaint, as that had been served. It was not necessary for use upon a trial of an issue of fact, because .there was no issue of fact to be tried. Subdivision 4 of section 872 of the Code of Civil Procedure provides that to obtain an order for the examination of an adverse party before trial, an affidavit must be presented setting forth .the name and residence of the person to be examined, and that the testimony of such person is necessary and material for the party making such application. And by rule 82 of the General Rules of Practice, the affidavit is required to specify the facts and circumstances which show that the examination is material and necessary. As from the complaint it would appear that there had been an accounting between the parties and the balance of account paid, the burden is probably upon the plain*367tiff to prove that this accounting was incorrect; and to prove that fact it may be necessary, when the case is at issue, to examine the defendants before trial. But until there is an issue of fact to be tried, it cannot appear that the testimony of any particular witness would be material and necessary for either party to the action.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendants granted, with ten dollars costs.

Laughlin, Clarke, Houghton and Scott, JJ., concurred.

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