
    George Maitland et al., Respondents, v. The Central Gas & Electric Co., Appellant.
    (City Court of New York — General Term,
    June, 1895.)
    . An order for the examination of a defendant before trial as to the number of articles manufactured and sold by it under a license from the plaintiff during a specified time should be vacated where the answer and moving-affidavit positively state that no articles covered by such license were manufactured or sold by the defendant during such period.
    
      Appeal from order denying motion to vacate an order for the examination of the defendant before trial.
    
      Bayliss da Bayliss, for appellant.
    
      Otis da Bressmger, for respondents.
   Newburger, J.

This action is brought to recover royalties under á license agreement with the defendant.

The defendant, by its answer, denies that it has sold or manufactured the articles referred to in the complaint, or is liable to the plaintiffs in any sum whatsoever.

The plaintiffs obtained an order for the examination of the defendant before trial in order to ascertain what goods it manufactured and sold during the quarter beginning January 1, 1895.

The defendant moved to vacate said order on an affidavit ■of its secretary, who stated that defendant had not manufactured and sold or imported and sold any electric light fixtures during the quarter sued for in this action.

The motion to vacate was denied, and from the order entered upon such denial this appeal is taken.

Without considering the question as to the sufficiency of the plaintiff’s affidavit, we think the order for the examination of the defendant’s officers should have been vacated for the reason that the positive statement in the answer of the defendant and in the affidavit of Charles H. Fischer, its secretary, that nothing has been done during the quarter referred to in the complaint, and that the defendant had not sold or manufactured during the quarter commencing January, 1895, any fixtures covered by the patents referred to in the license agreement.

The order appealed from must, therefore, be reversed, with costs.

OonxAir, J., concurs.

Order reversed, with costs.  