
    Yetta Bernstein, Appellant, v. Meyer Solomon, Respondent, Impleaded with Simon Epstein and The City of New York, Defendants.
    First Department,
    October 21, 1910.
    Deposition — examination of third party before trial.
    Defendants sued for an accounting ‘under a contract whereby they agreed to sell property conveyed to them by the plaintiff’s assignor and to pay him a portion of the proceeds and the rents and profits are not entitled to examine the assignor before trial merely to show that the plaintiff cannot establish a cause of action.
    On an application to examine a person not a party before trial it must be shown that he is about to depart from the State, or is so sick and infirm as to afford reasonable ground to believe that he will be unable to attend a trial, or that there are other special circumstances existing which render it proper that he should be examined.
    
      Appeal by the plaintiff, Yetta Bernstein, 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 8th day of July, 1910, denying the plaintiff’s motion to vacate an order for the examination of a witness before trial.
    
      Norman S. Goetz, for the appellant.
    
      I. Gainsburg, for the respondent.
   McLaughlin, J.:

Appeal from an order denying a motion to vacate an ex parte order obtained by the respondent for the examination before trial of plaintiff’s assignor.

The complaint alleges, in substance, that in January, 1900, one Max Bernstein was the owner of certain described premises in Kings county and he made an agreement with the individual defendants whereby they were to advance money for the erection of buildings upon the property, and the income therefrom and the profits when the buildings were sold were to be divided among them equally ; that in August, 1900, it was further agreed that Bernstein should convey title to the premises to the said defendants, which was done, and that they should endeavor to sell the same, the profits and income to be derived in the meantime to be divided as before stated ; that in February, 1901, an accounting was had, as a result of which a new agreement was made, by which the defendants agreed to sell the property as soon as possible and pay Bernstein one-third of the proceeds o£ the sale over and above $81,000, and also one-third of the rents and profits derived from the property from August, 1900 ; that in March, 1901, Bernstein assigned all his rights under the agreement to the plaintiff, who notified the defendants of the assignments, and since has frequently demanded that they carry out the agreement, which they have refused to do ; that the city of New York has since acquired title to the premises under condemnation proceedings and an award therefor has been made to the said defendants of $114,604; that they have refused and neglected to carry out the agreement and have repudiated the same, asserting that neither the plaintiff’s assignor nor the plaintiff has any right or interest in the award or in the rents and profits derived from the premises.

After issue had been joined the respondent applied to the court for an order to examine Bernstein before trial with reference to the accounting alleged in the complaint and the assignment of the cause of action to him. The motion was granted and an order made directing Bernstein to appear for examination “ concerning the matters set forth in the annexed affidavit and generally with reference to the pleadings herein.” The plaintiff appeals.

I think the motion to vacate should have been granted. How Bernstein’s testimony can be material and necessary to the defendants is not in any way disclosed. There is apparently no purpose for which defendants could use his testimony, unless it be to show that the plaintiff cannot establish a cause of action, and this is not a legitimate ground for ordering an examination of this character. (Rogers v. Adler, 137 App. Div. 197.) He is not the plaintiff in this action and is not a party to it. In 'order to be permitted to examine before trial a person not a party to the action it must be made to appear that the person sought to be examined is about to depart from the State; or that he is so sick or infirm as to afford reasonable ground to believe that lie will not be able to attend the trial; or that any other special circumstances exist which render it proper that he should be examined * * (Code Civ. Proc. § 872, subd. 5.) Here no attempt was made to show that Bernstein was sick or infirm, or about to leave the State, and the only special circumstance which could possibly justify an order for his examination is the fact that he is the plaintiff’s assignor. While this may, perhaps, be properly considered in determining whether such an order shall be made, it is not enough in and of itself to warrant the order. Something more must be shown. Nothing else was shown in the present case and for' that reason the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarice and Scott, JJ., concurred.

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