
    Nevada Van Valkenburgh, Respondent, v. Philip Van Valkenburgh, Appellant.
    First Department,
    March 8, 1912.
    Deposition—husband and wife—action for separation — counterclaim — examination of defendant as to his financial condition denied.
    Where in an action for separation the plaintiff demands relief on the ground of defendant’s cruelty, abandonment and failure to support her, and the defendant, after admitting the abandonment and non-support, sets up a counterclaim wherein he alleges he was justified in such abandonment because of plaintiff’s cruel and inhuman treatment of him and abandonment as well, an order for the examination of the defendant before trial to disclose the amount of his income and property that the amount of alimony may be determined should not be granted. The question of defendant’s financial condition in reference to any award of alimony does not become an issue until plaintiff has succeeded in establishing her right to the judgment which she seeks.
    Laughi/ex, J., dissented, with opinion.
    Appeal by the defendant, Philip Van Valkenburgh, 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 31st day of January, 1912.
    
      William M. K. Olcott, for the appellant.
    
      Edward Lauterbach, for the respondent.
   Dowling, J.:

Appeal from an order denying a motion to vacate an order for the examination of the defendant before trial.

The action is brought for a separation. The pleadings are not before us but the affidavits disclose that the plaintiff demands relief on the ground of defendant’s cruelty, abandonment and failure to support her. Defendant admits the abandonment and non-support, and alleges that he was justified in such abandonment because of plaintiff’s cruel and inhuman treatment of him and that plaintiff abandoned him as well. In the original moving affidavit for the order it was averred that the testimony of defendant was necessary and material to the plaintiff upon the trial of this action in order to disclose the amount of plaintiff’s income and property, and that the alimony to be adjudged and provided for in the final judgment for the maintenance of the plaintiff may be determined; ” also to show what demands upon defendant’s property and income exist apart from plaintiff’s support; • and finally that the testimony is material and necessary in order to determine the amount of permanent alimony to which the plaintiff may be entitled.” The papers before us sufficiently demonstrate that the examination of defendant is not now necessary or material to plaintiff. The question of defendant’s financial condition in reference to any award of alimony does not become an issue until plaintiff has succeeded in establishing her right to the judgment which she seeks. Should she fail in her action, or should the defendant recover judgment in his favor upon his counterclaim wherein he asks for relief, the information sought by the examination would be immaterial, unnecessary and useless.

The situation is analogous to that of an action to have a conveyance, absolute upon its face, declared to he a mortgage and for an incidental accounting (Fogarty v. Fogarty, No. 1, 128 App. Div. 272); or an action for an accounting under an agreement to divide certain profits (Moore v. Reinhardt, 132 id. 707) ; or an action to set aside an assignment of an interest in a copartnership and for an accounting (Gow v. Ward, 144 id. 593); in all of which cases the right to an examination and discovery before trial was denied, as the accounting followed only as the result of the determination of the main issue. Here the right to alimony, if any, can only arise from a determination of the main issue in plaintiff’s favor, and until that is so decided the question of defendant’s financial situation as a possible basis for alimony is immaterial and not necessary to the establishment of plaintiff’s rights. As that is the sole subject of the examination which has been ordered, the order appealed from must he reversed, and the motion to vacate the order for the examination of defendant granted.

McLaughlin, Clarke and Scott, JJ., concurred; Laughlin, J., dissented.

Laughlin, J. (dissenting):

I am of opinion that the plaintiff was entitled to the order for the examination of the defendant. The provisions of the Code of Civil Procedure with respect to the trial of an action for separation contemplate hut a single trial and that the plaintiff shall introduce all of his evidence before he rests and that final judgment shall thereupon he decreed which if in favor of a wife shall provide for her support and for the maintenance anri education of the issue of the marriage. (Code Civ. Proc. § 1766.) It is said that the practice in this judicial district is to take the evidence hearing upon the main issues and then to suspend the trial until the court reaches a decision with respect to the merits of the case, and if it shall he in favor of the wife, to resume the trial for the purpose of taking evidence with respect to the husband’s property and income. That is not the practice throughout the State, and I find no warrant for it in the Code of Civil Procedure. I think the plaintiff is as much entitled to such an examination for the purpose of affording a basis for the award of alimony as upon the main issues, for they are to he decided by a single decree, and no useful purpose is to be served by trying the cause piecemeal.

I, therefore, vote for affirmance. -

Order reversed and motion granted.  