
    James A. Grant and Nettie L. Grant, Appellants, v. William C. Greene, Respondent, Impleaded with Greene Consolidated Copper Company and Others, Defendants.
    First Department,
    April 5, 1907.
    Deposition — examination of party before trial — reference to unverified complaint — when moving affidavit sufficient.
    Although under the present rule in the first department a party, in the absence of bad faith or abuse of process, is entitled to examine his adversary before trial as to facts which are material to the issue of which he has knowledge and to take his deposition for use on the trial, yet on the application it must be shown that material issues are involved of which the party sought to he examined has knowledge, and this must be established not by mere assertion of the affiant’s- conclusions but by' allegations of facts from which the j ustice to. whom the application is made can himself draw the necessary conclusions.
    The affidavit in order to establish the nature of the action and the claims which the plaintiff asserts may make reference to an unverified complaint which is attached to and made part thereof.
    In a stockholder’s action to obtain a decree adjudging that another corporation holds legal title to property in trust for the stockholder’s company and for an accounting, an examination before trial of the officer of the alleged trustee may be had when the complaint shows that the plaintiff may not be able to secure his attendance at trial; that he is the only living person having full knowledge of the facts necessary to prove the plaintiff’s case; that although he has been examined in other actions and has made admissions which go to prove the allegations of the complaint, such admissions cannot be used against the other defendants, and that he has knowledge of the specific facts and circumstances as to which the examination is sought, etc., and that the plaintiffs intend to call him on trial as their principal witness.
    The affidavit on an application for examination of a party before trial need only allege the necessary facts; it, need not state the evidence tending to prove those facts.
    Appeal by the plaintiffs, James A. Grant and another, 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 1st day of-February, 1907, vacating a prior order for the examination of the defendant William C. Greene before trial.
    
      Walter B. Raymond, for the appellants.
    
      M. E. Harby, for the respondent.
   Scott, J.:

The plaintiffs appeal from an order vacating an order for the examination of the defendant William C. Greene as a witness before trial. The learned court below, recognizing the liberal rule now in force in this department respecting such examinations, still was of the opinion that in this case the affidavit of the plaintiff did not sufficiently state the essential facts to sustain an order for examination. It is quite true that, as usual in this litigation, the papers are voluminous and many of the allegations are argumentatively stated, but it is possible to extract from the affidavit upon which the order of examination was granted all the necessary facts to sustain the order. First. The nature of the action is Stated. This is done by a reference to the complaint which is attached to and made part of the motion papers. This complaint is unverified, and while the reference to it in the affidavit is not equivalent to a verification so as to permit the complaint itself to be read and considered as an affidavit, yet such a reference is equivalent to a statement in the affidavit of the cause of action and the claims which the plaintiffs assert. Second. Certain facts are recited tending to show that it is quite probable that plaintiffs may not be able to secure Greene’s attendance at the trial. Third. That Greene is the only person living who has a full and complete knowledge of all the facts necessary to prove plaintiffs’ cause of action. Fourth. That Greene has been examined exhaustively in various actions and proceedings concerning many of the transactions set forth in the complaint and has made several admissions and statements which will go far to prove the allegations of the complaint, but for certain reasons such examinations, admissions and statements cannot he used at the trial of this action against the defendants other than said Greene. Fifth. That Greene has knowledge of the specific facts and circumstances as to which an examination is sought; that he was the original owner of the mines involved in the litigation, or of options upon them ; was one of the organizers and directors of the Cobre Grande Copper Company; personally conducted negotiations with one Lawson and one Addicks named in the complaint; was president of the Cobre Grande Copper Company; was president and organizer of the Greene Consolidated Copper Company and the Cananea Consolidated Copper Company, with which corporations he has been identifed since their organization either as officer or director. Sixth. That plaintiffs intend to call said Greene upon the trial as one of their principal witnesses.

The present rule in this department is that, in the absence of bad faith or abuse of process, a party to an action is entitled to examine his adversary before trial as to facts which are material to the issues and of which he has knowledge, and to take his deposition for use on the trialand it is no answer to such an application that the party making it can procure the evidence from other persons, or could subpoena his opponent for the trial. (Goldmark v. U. S. Electro-Galvanizing Co., 111 App. Div. 526; McKeand v. Locke, 115 id. 174.) It is still necessary, however, to show that material issues are involved, of which the party sought to be examined has knowledge, and this must be established not by mere assertion of the affiant’s conclusions to that effect, but of facts. from which the justice to whom application is made can himself draw the necessary conclusions.

The action is one by' stockholders of the Cobre Grande Copper Company to procure a decree adjudging that the Cananea Consolidated Copper Company, a Mexican corporation, holds the legal title to certain mines and mining properties in the Republic of Mexico in trust for the Cobre Grande Copper Company, and for the purpose of compelling the defendants .William C. Greene, the Greene Consolidated Copper Company and the Cananea Consolidated Copper Company to account for and pay over to the Cobre Grande Copper Company the benefits and profits derived from said mines and mining properties.

An examination of the complaint shows that in order to establish the cause of action therein, alleged it will be necessary to prove a long c.ourse of dealing between the several corporations, in all of which, as it is .alleged, the defendant Greene took a very active part. If it be true, as affirmed by the affiant, and it is not denied, that Greene held the relations to the several defendants that are set forth in the affidavit, the conclusion is irresistible that he must have knowledge of and can testify to many of the transactions set forth in detail in the complaint, and a perusal of the complaint in connection with the recital of his intimate connection with the defendant corporations is quite sufficient to satisfy the court, in the absence- of any denial of knowledge, that his testimony will be material and that he has knowledge of the facts, or some of them, which the plaintiffs wish to prove. The respondent criticises the affidavit because, as it is said, it states only conclusions and not facts. Certainly Greene’s connection with and relations to the various companies are stated as facts, and it is from these connections and relations that we are entitled to draw the inference- as to his knowledge. If the point of the criticism is that the affiant does not state the evidence tending to prove the facts, the answer is that this is not required.

Our conclusion is that the order for examination was properly granted, and the order vacating it must be reversed, with ten dollars, costs and disbursements, and the motion to vacate denied, with ten dollars costs.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  