
    James Wilson et al., Plaintiffs, v. Thomas A. Nevins, Defendant.
    (Supreme Court, New York Special Term,
    May, 1909.)
    Discovery and inspection — Examination of party before trial — Procedure — Production of books and papers.
    Under an order for the examination of a party before trial, the issuance of a subpoena duoes t'eoum should await until it appears on the examination that the papers are necessary to enable the party to testify.
    Motion to modify an order for the examination of defendant before trial and to vacate a subpoena duces tecum issued in aid of said examination.
    Steele, De Friese & Steele, for plaintiffs.
    Louis T. Noonan, for defendant.
   Gildersleeve, J.

The motion is to modify an order for the examination of defendant before trial by vacating a subpoena duces tecum issued upon said order. The defendant was required to testify as to the furnishing of certain goods and performance of certain labor and concerning payments made by defendant for goods alleged to have been furnished to his wife. The subpoena duces tecum seems to be premature, as it does not appear that the various papers covered by the subpoena will be required to refresh the recollection of defendant to enable him to give testimony to which plaintiffs may be entitled. It does not appear that the nature of the matters concerning which the defendant is to be examined or his general attitude toward the examination is such that it is reasonably certain that he will not or cannot answer the questions to be propounded to him, without reference to his books and papers; so that there is no reason here for departing from the rule that the issuance of a subpcena duces tecum should await until it appears on the examination that the papers are necessary to enable the party to testify. Motion to the extent above indicated granted. Ho costs.

Ordered accordingly.  