
    William M. Grant and George C. Grant, Composing the Firm of Grant Brothers, Respondents, v. James M. Leopold and Alfred M. Leopold, Composing the Firm of James M. Leopold & Company, Appellants.
    (Supreme Court, Appellate Term,
    November, 1908.)
    Discovery and inspection — Examination of party before trial: Right to remedy — To establish fact within exclusive knowledge of adverse party: Procedure — Production of books and papers — Subpoena duces tecum.
    In an action to recover money paid as margin on stock transactions in an alleged “bucket shop,” upon the ground that the transactions were mere wagering contracts and, therefore, void, an order may be granted for the examination of defendants before trial where they claim that they actually purchased and sold stocks for plaintiffs and did a Iona fide brokerage business.
    In such case, the order may provide for the issuance of a subpoena dueos teeum.
    
    
      Appeal from an order of the City Court of the city of New York.
    Edmond E. Wise (Walter P. Frank, of counsel), for appellants.
    Jacob Friedman, for respondents..
   Per Curiam.

This is an appeal from an order denying defendants’ motion to vacate an order for the examination of one of the defendants before trial. The action is to recover $400 paid by plaintiffs to defendants as margin on stock transactions. It is plaintiffs’ claim that defendants operated a bucket shop ” and never really purchased or sold stock for plaintiffs, nor was it ever intended that they should by either party, and that the transaction was a mere wagering contract and, therefore, void. Defendants claim that they actually purchased and sold stock for plaintiffs and did a bona, fide brokerage business. It seems, from the affidavits, that the plaintiffs wish to prove by the defendant James M. Leopold some of the facts alleged in their complaint by showing what was actually done, and the manner in which the defendants conducted their business, and all circumstances that may tend to prove that there was no real purchase or sale made by them; all of which would be material to the plaintiffs’ case and might be in support thereof. Peck v. Doran & Wright Co., 57 Hun, 343; Kenyon v. Luther, 19 N. Y. St. Kepr. 32. The claim that the order is erroneous in that it contains á direction for the production of books and papers is without force. The order does not contain such a direction. There is .a provision in the order for the issuance of a subpoena duces tecum which is sanctioned by Crompton v. Dobbs, 119 App. Div. 331.

The order should be affirmed, with ten dollars costs and disbursements.

Present: Gildersleeve, MacLean and Seabury, JJ.

Order affirmed, with ten dollars costs and disbursements.  