
    Mary Ryan, Appellant, v. William Reagan and Alexander Clark, Respondents.
    
      Ejectment — examination of a defendant before trial as to the rents and profits from advertisements on a wall — hole far the frivolousness of the complaint will be considered — objection that a misdemeanor will be disclosed, and the question as to the production of books, reserved until the examination.
    
    The right to maintain an action of ejectment will not be determined on a motion, made by the defendants to vacate an order obtained by the plaintiff for the defendants’ examination before trial, unless it appears upon a bare inspection of the complaint that it is frivolous.
    Where the complaint in an action of ejectment for the possession of a wall• demands as damages the rents and profits of the wall and the value of its use and occupation, the plaintiff, upon showing by affidavit that the defendants had leased space upon the wall to various advertisers, and that she desired to prove, upon the question of damages, the amount of the rentals received by them, is entitled to examine the defendants before the trial in relation to such leases.
    The question whether the‘information sought to be elicited from the defendants will tend to show that they were guilty of a misdemeanor will not be determined on the motion, but should be reserved until the examination takes plane, , as should also the question concerning what books should be produced by the defendants. ■ *'
    Appeal by the plaintiff, Mary Ryan, 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 28th day of November, 1898, vacating an order for the examination of the defendants before trial.
    
      
      John J. Lenehan, for the appellant.
    
      A. S. Gilbert, for the respondents.
   O’Brien, J.:

This is an action in ejectment based upon a complaint which alleges that the plaintiff is the owner and entitled to the immediate possession of the premises at the southeast corner of Barclay street and West Broadway; that the easterly boundary line of her property runs part of the way through the middle of a party wall; that the westerly half of the wall and the land on which it stands belongs to the plaintiff; that the defendants took possession of and occupied and still occupy the wall and premises, wrongfully, unlawfully and without the plaintiff’s consent. Judgment is asked for the immediate possession of the wall and, as damages, the rents and profits and the value of the use and .occupation. The answer denies the plaintiff’s title.

In the affidavit to obtain the order. for examination it is stated that the defendants, who are billposters and displavers of advertising signs, have covered the plaintiff’s property with signs, posters, billboards, placards and other advertising mediums and have let to a large number of persons and corporations spaces on the plaintiff’s wall and premises, charging therefor different sums varying with the form of advertising, the amount of space and the duration of occupancy; and that from these rentals the defendants derive a large income. Additional facts are stated tending to show that an examination of the defendants is material and necessary to enable the plaintiff to prove her damages at the trial. On this affidavit the plaintiff obtained an order for examination which the defendants, subsequently moved to vacate on numerous grounds, none of which were passed upon by the court below excepting the claim that the action, as alleged in ejectment, would not lie. On that ground the order for the examination was vacated, and it is from the conclusion thus reached that the plaintiff appeals,

In vacating the order of examination for the reason that upon the facts-stated the action was misconceived and ejectment would not lie, the decision of the Special Term, as appears from the opinion, was based upon the recent case of Goldman v. The New York Advertising Company (29 Misc. Rep. 133), in which the Appellate Term held that a contract by which an owner of real estate leased a wall of his house was not in fact a lease. In that case, however, there was no question of title as there is here; nor were the facts therein, or in Reynolds v. Van Beuren (155 N. Y. 120), or Lowell v. Strahan (145 Mass. 1), like those set- forth in the present instance. Here the allegations are directed to showing that the defendants have exercised acts- of authority and dominion over the property, as owners or lessees, and that for four years they have conducted their business or trade on the premises, and by the answer to the complaint the question of the plaintiff’s title is ra^ed.

■ In view of the pleadings, therefore, we think that it wag error for the Special Term in disposing of the defendants’ motion to determine the question of the plaintiff’s right to maintain the action, and on that ground alone to vacate the. order for examination. It is only where upon the face and by a bare inspection of the complaint it appears to be frivolous, that on such a motion the right to maintain the action should be determined. In this court we are not called upon any more than was the Special Term to determine the sufficiency of the complaint beyond stating that it is not in our opinion frivolous. We think; therefore, that the plaintiff’s right to maintain the action in ejectment was improperly disposed of on the motion to vacate the order for examination. The determination of that right should be left till the trial, or made when the question is raised by demurrer.

Though the ground taken below was erroneous, the order should be affirmed if any of the other objections made by the defendants are good. We are required, therefore, to consider such other objections, as to whether the damages claimed could be. recovered, whether the defendants could be compelled to submit to an examination which might tend to criminate them, and whether the affidavit upon which the order was obtained was defective. Regarding the first point, the Code provides that in ejectment the damages recoverable shall "include the rents and profits, or the value of- the use and occupation of the property where either can legally be recovered by the plaintiff.” (Code Civ. Proc. §§ 1496, 1497, 1531.) Relating to this subject, the plaintiff’s affidavit states that she. "desires and expects to prove as her damages upon the trial of this action the amount of the rents and profits or the value of the use and occuipation of plaintiff’s wall; and in order to prove said damages, ■desires to examine the defendants to show the various leasings or hiring out of spaces, their duration. and the amonnt of rental. or revenue derived by defendants therefrom, when and from whom received ***.”'

Assuming, as we should till the question is properly disposed of, that the plaintiff can maintain the action, then the facts sought to be jproved are relevant and material upon the question of damages; ■and as such facts are 'stated to be peculiarly within the defendants’ knowledge and control, the plaintiff is entitled to an examination of either or both of them. It appears that one of the defendants,

. William Reagan, has been an invalid for fifteen years last past and ■during that period has not personally transacted business of any kind -and would be unable to testify to any facts relating to the premises in question. This is a perfect answer to so much of the plaintiff’s motion as seeks to examine him; but ■ it does not render her ¡affidavit entirely defective, for sickness not being a fact of which "the" plaintiff should know or will be presumed to have known, the •only result is that the order appealed' from must be affirmed as far as it affects Reagan.

The question whether the information sought to be elicited by the examination of the defendants might tend to criminate them by showing that they were guilty of misdemeanor, is one to be left till the examination takes place. The privilege to which reference is made is at best but a personal one which may be waived, and it may be that some of the information sought, will not have a tendency, to1 ■criminate. This matter, however,, as stated, should be reserved till the examination occurs, and can then be disposed of by the judge before whom the proceedings are conducted.

So, too, the objection as to the books which the plaintiff desires to have produced can only be determined at the time of the examination, when it will appear how far they will be necessary to enable the witness to testify. What the plaintiff is entitled to is the right to examine the ’ defendant Glark; and if he, without the aid of books which he possesses, is unable to furnish the. information ■sought, then he can be required to resort thereto for the purposes ■ of refreshing his memory or giving the facts desired.

We think that the order ¡below should be modified, with ten dollars costs and disbursements, by affirming it so far as it vacates the order of examination as to the defendant. Reagan; but that it should be reversed so far as it relates to the defendant Clark, and that the motion to vacate the order for his examination should be denied, with ten dollars costs.

Van Brunt, P. J., Rumsey and Ingraham, JJ., concurred!

Order modified, without costs, by' affirming it so far as it vacates order for examination of defendant Reagan, and reversing it so far it relates to defendant Clark, and motion to vacate order for his examination denied, with ten dollars costs.  