
    Press Publishing Company, Respondent, v. The Star Company and The Morning Journal Association, Appellants, Impleaded with The Associated Press and William R. Hearst.
    
      Bmmination before trial of. the office's. of two publishing companies — collusive arrangement for the use Iry one of an Associated Press franchise held by. the other — that the officers will be present at the trial is not an objection—provision in the order requiring the officers to produce certain boohs.
    
    Where an issue is presented as to whether an arrangement has been collusively entered into between two publishing companies, in order to enable one of them to control' the privileges of membership in the Associated Press held .by the other, it is proper, under section 873 of the Code of Civil Procedure, to allow an examination of-the officers of the publishing companies who have made the arrangement and are engaged in carrying it out, it being clear that conclusive proof of the arrangement can be ascertained from no other source.
    The fact that the officers, who aré to be examined, state in their affidavits, in opposition to a motion for such' examination, that they intend to be present upon the trial of the action, does not affect the right of the other party to an examination of them before trial.
    A provision in the order for such examination, requiring the officers to produce certain books and books of account of their respective companies, does not make the order one for the discovery and inspection of the books; such provision of the order is authorized by subdivision 7 of said section 873, its .purpose being to permit a reference to the books, if such reference should become necessary during the examination, either to corroborate or contradict a witness, ór to make the proof preliminary to the introduction, of the books in evidence upon-the trial.'
    Appeal by the defendants,- The Star Company and The Morning Journal Association, 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 24th day of March, 1898, denying the motion of the said defendants to vacate an order ' theretofore made requiring the defendant' William R. Hearst, as president of the defendant The Star Company, and Charles M. Palmer, as treasurer of the defendant The Morning Journal Association, to appear before a referee for examination, and also to produce certain books and books of account of .their respective companies.
    
      B. F. Einstein, for the appellants.
    
      James W. Gerard, Jr., for the respondent.
   Per Curiam :

The important fact.in the case, and the one which must he proved by the plaintiff to entitle it to recover, is that the Star Company is not the publisher of the Morning Journal and Advertiser, but that that paper is published, in fact, by the Morning Journal Association, and that the arrangement between the Star Company and the Morning Journal Association is a collusive one to enable the Morning Journal Association fraudulently to control the privileges of membership of the Associated Press formerly held by the Star Company. The facts shown upon the application for an order for the examination of the officers of the Morning Journal Association tend strongly to prove these facts,- but it is clear that conclusive proof of such an arrangement can be obtained only by the examination of the officers of the association who made the arrangement and who are now engaged in carrying it out. The case is clearly one, therefore, within section 872 of the Code of Civil Procedure and.the plaintiff is entitled to examine the.officers of the defendant association, because it is quite evident that the precise facts can be ascertained from no other source.

The officers who are to be examined state in their affidavits that they intend to be present upon the trial of the action ;' but such an intention does not affect the right to an examination before trial. (Presbrey v. Public Opinion Co., 6 App. Div. 600.)

The objection to the production of the books is not well taken. That portion of the order is authorized by the 7tli subdivision of section 872 of the Code of Civil Procedure. Its object is that if a reference to the books becomes necessary during the examination either to corroborate or contradict a witness, or to make the proof preliminary to the introduction of the books in evidence upon the trial, such proof may be made and the books may be referred to for that purpose. This is not an order for the discovery and inspection of the books, but purely such a one as is authorized by the section of the Code above referred to. (Horst v. Yuengling Brewing Co., 1 App. Div. 629; Drake v. Weinman & Co., 33 N. Y. Supp. 177.)

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

Present —Van Brunt, P. J., Barrett, Rumsey, O’Brien and McLaughlin, JJ.

Order affirmed, with ten dollars costs and disbursements.  