
    Continental Securities Company and Clarence H. Venner, Stockholders in the Interborough Rapid Transit Company, on Behalf of Themselves and All Other Stockholders Similarly Situated, and on Behalf of the Said Interborough Rapid Transit Company, Respondents, v. August Belmont and Others, Appellants, Impleaded with The Interborough Rapid Transit Company, Defendant.
    Second Department,
    November 17, 1911.
    Discovery — examination before trial — sufficiency of moving affidavits — nature of action — knowledge of persons examined — facts pertinent to issue..
    A plaintiff moving for an examination of the defendant before trial complies with the requirements of section 872 of the Code of Civil Procedure, poviding that where the action is pending he must show the. nature of the action and the substance of the judgment demanded, if he annexes the pleadings to his moving affidavit and makes them part thereof.
    An order for an examination of defendants before trial should be granted where the moving papers show that the transactions attacked are peculiarly within the knowledge of the parties! sought to be examined, that it is intended to use their evidence at trial, and the facts to be developed are pertinent to the issues.
    
      Appeal by the defendants, August Behnont and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 29th day of August, 1911, denying the motion of the defendants August Behnont and Walter Luttgen to vacate an order directing their examination before trial.
    
      Courtland V. Anable [Julian T. Davies, Delancey Nicoll and Charles H. Tuttle with him on the brief], for the appellants.
    
      J. Aspinwall Hodge [Stephen M. Yeaman and Alexander Hottzoff with him on the brief], for the respondents.
   Woodward, J.:

The affidavit upon which the order for the examination of the appellants was obtained stated that the action was brought " on behalf of themselves and of all other stockholders of the defendant Interborough Rapid Transit Company who are similarly situated, and for the benefit of said corporation defendant, for the purpose of compelling the individual defendants and each of them to account to said corporation defendant for 15,000 shares of the par value of $100 each, and of a much greater market value, of the capital stock of said corporation defendant, which is in the complaint alleged to have been unlawfully issued to them, or any of them, under and pursuant to a transaction which is more fully set forth in the complaint herein. A copy of said complaint, of the two supplemental complaints herein and the answer of each defendant who has appeared herein are submitted to the court upon this motion and are made a part of this affidavit.”

No further or other statement is contained in the moving affidavit as a, compliance with the provisions of subdivision 2 of section 872 of the Code of Civil Procedure, requiring that on an application for an order for the examination of a party the moving affidavit shall set forth: “If an action is pending, the nature of the action, and the substance of the judgment demanded, and if the application is made by the defendant before answer, or by either party after answer, the nature of the defense.”

It is contended by the appellants that the order should have been vacated for a non-compliance with the provisions of this subdivision of the section.

The manifest purpose of the provision quoted is to apprise the court of the general nature of the action and of the issues to be tried, so it may judge of the propriety of granting the order asked, and in case granted, of limiting the scope of the examination. All the purposes of the section are met by the production of the pleadings themselves. When, therefore, in the • moving affidavit the affiant produces the pleadings themselves arid makes them “a part of this affidavit” as a basis of the order asked, has he not met all the substantial requirements of the Code in that respect ? We think he has.

It has been held that for the purposes of complying with the provisions of this section the pleadings themselves may be used as an affidavit when the order is based upon them, and the affidavit, makes the pleadings a part of it. (Wallace v. Bacon, 143 App. Div. 211, 213; Grant v. Greene, 118 id. 850.)

. In the case of Loewy v. Gordon. (129 App. Div. 459), cited by thé appellants in.support of their contention, the pleadings were simply referred to' in the moving affidavits, without making them a part of it or basing the order, upon them, which, facts distinguish that case from the one now under consideration.

The other objections to the sufficiency of the moving papers on which the order for examination was granted we think are not well taken. We think they sufficiently establish that many, if not most, of the transactions attacked are peculiarly within the knowledge of the parties sought to be examined; that it is the purpose to use their evidence on the trial, and that the facts to be developed are pertinent to the issues to be tried. In such cases courts should not hesitate to grant the right of examination given by the Code. (Richards v. Whiting, 127 App. Div. 208; Goldmark v. U. S. Electro-Galvanizing Co., 111 id. 526; Poole v. Means, 144 id. 155.)

The order appealed from is, therefore, affirmed, with costs.

Jenks, P. J., Burr, Carr and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  