
    Richard Henry Savage, Appellant, v. Frank Tennyson Neely, Respondent.
    
      Accounting as to royalties due am author — examination before trial — sufficiency of the affidavit therefor ■—• office of a subpoena duces tecum.
    Where in an action brought by an author against a publisher to procure an accounting of sales, made under an agreement by which the publisher was to publish the works of the author and pay him a specified royalty upon the books sold, the plaintiff, on an application for the examination of the defendant before trial, states that the defendant’s testimony is material and necessary; that the plaintiff expects to prove by the examination the number of books printed, and by whom sold, and to whom, and the amount received therefor, the number of books on hand, and the number of damaged books returned, and the amount and nature of all charges against the plaintiff, and avers that these facts are within the knowledge of the defendant and are not within the knowledge of the plaintiff, the plaintiff is entitled to an .order for the defendant’s examination.
    While the plaintiff cannot, in such an action, have a discovery of hooks and papers, he may, upon the examination of the defendant, prove any entry or papers tending to substantiate his claim, and, in order to effectuate this, a subpoena duces tecum is appropriate.
    Appeal by the plaintiff. Richard Henry Savage, 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 29th day of June, 1896, vacating an order for the examination of the defendant before trial and a subpoena duces tecum.
    
    
      C. Bainbridge Smith, for the appellant.
    
      Gilbert P. Coleman, for the 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, and by whom, 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 prove 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).

The order appealed from should he reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the. examination of the defendant and the subpoena duces tecum denied, with ten dollars costs, and a day will be fixed in the order for the examination.

Present — Barrett, Rumsey, Patterson and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements and motion denied, with ten dollars costs. A day will be fixed in the order for the examination.  