
    James E. York, Appellant, v. Herman E. Dick, Respondent.
    Order modified in accordance with' opinion of Jenks, J., without costs.
    Appeal from an order of the Special Term setting aside an order for the examination of the defendant before trial.
   Jenks, J.:

If the action is-not by one partner against another, it is so similar in its character that the rules and procedure applicable to partnership suits may be applied, (Parks v. Gates, 54 App. Div. 512.) The plaintiff does not show that he requires the testimony of the defendant or any evidence in his control to establish the alleged agreement. He deposes that the agreement was made, and that the deféndant told him that he had organized the company in London with a capitalization of *$500,000 to take over the patent rights; that he was obliged to give up a majority of the stock to parties in England and to pay $30,000 to Mr. Edison, retaining the rest himself, and that the defend ant promised to give a statement which afterwards he declined to furnish. If the plaintiff can establish a partnership, then he is entitled to an accounting. On the other hand1, he can testify to the agreement and to the alleged admissions of the defendant; such testimony, if believed, would seem to be sufficient to establish a prima facie case provided there was proof of profits. So in any event, the examination of the defendant is not necessary to the plaintiff save upon that subject. I think that ■ the rule of Parks v. Gates (supra) should apply, and I, therefore,, advise that the order be affirmed, provided that the defendant stipulate in a "general way that there were profits resulting from the disposal of the" said patent rights, the particulars of which can be inquived into on the trial, provided the plaintiff make a case sufficient to warrant such inquiry. Upon such stipulation being given,, the order should be affirmed, without costs to either party. But if the defendant neglect or refuse to make such stipulation the order must be reversed, with ten dollars costs and disbursements, and upon two days’ notice this court will make such further order as-may be proper in the premises. All concurred. *  