
    Mary C. Haff, Respondent, v. William P. W. Haff, Appellant.
    First Department,
    May 21, 1909.
    Discovery—husband and wife — action for separation — counter charges of adultery—examination of defendant denied.
    Where a husband, sued for a separation, makes counter charges- of adultery, and asks for an'.absolute divorce, and may move to frame issues for a j ury, the ■plaintiff will not be granted an examination of the defendant before trial solely to obtain evidence to establish the amount of permanent alimony. Such application is premature, as if the defendant succeeds oh the issue of adultery plaintiff’s action must fail.
    Appeal by the defendant, William P. W. Haff, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 6th day of April, 1909.
    
      I. Maurice Wormser of counsel [Max D. Steuer, attorney], for the appellant.
    
      Leo R. Brilles of counsel [House, Grossman & Vorhaus, attorneys], for the respondent.
   Clarke, J.:

Appeal from an order denying a motion to vacate an order for the examination of the defendant before trial. This is an action for a separation upon the ground of cruel and inhuman treatment. The answer denies all the acts charged in the complaint, and sets up numerous acts of adultery on the part of the plaintiff and counterclaims for an absolute divorce. A motion has been made to frame the issues for trial by jury, which motion has been denied with leave to renew. The object of this examination is solely to obtain evidence of the defendant’s means for use upon the trial of the separation action to establish the amount of permanent alimony.

In view of the condition of the case and that if the adultery charges are sent to trial before a jury upon framed issues, and if the defendant wins there will be an end of the separation action and so no necessity for this evidence, the motion for the examination of defendant is premature, because it is not now made to appear that the testimony is material and necessary to the plaintiff’s cause of action. This order should, therefore, be reversed, and the motion to vacate the order for examination granted, without prejudice to a new motion if necessity therefor hereafter arises, without costs.

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

Order reversed, without costs, and motion granted, without prejudice to new motion.  