
    Kathrine C. Gould, Appellant, v. Howard Gould, Respondent.
    First Department,
    April 10, 1908.
    Deposition—husband and wife — separation—misconduct of plaintiff prior to marriage.
    A defendant husband sued for separation is not entitled to examine a witness before trial de Tiene esse for the purpose of preserving testimony that the plaintiff prior to her marriage had fraudulently stated that she was a person of good moral character while as a matter of fact she maintained meretricious relations with another person. As such fact would be no defense to the action for separation, and is not material upon the question of alimony, the testimony of the witness sought to be examined is not material and necessary, as required by the Code of Civil Procedure.
    Appeal by the plaintiff, Kathrine 0. Gould, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of December, 1907, denying the plaintiff’s motion to vacate an order for the examination of a witness before trial.
    
      Clarence J. Shearn, for the appellant.
    
      Archibald Robinson Watson, for the respondent.
   McLaughlin, J.:

This action is brought to procure a judgment of separation. Before the service of an answer the defendant obtained an ex parte order for the examination of a witness before trial de bene esse and from an order denying a motion to vacate this order the plaintiff appeals.

The order of examination was granted upon an affidavit by the defendant, which stated that his defense would be a general denial and that “ in addition to the said general denial the defendant will set up in justification the misconduct of the plaintiff, and will also ask for certain affirmative relief as a counterclaim.” The affidavit further alleged that prior to the marriage of the parties, which took place on the 12th of October, 1898, the plaintiff stated and represented to the defendant that she was a person of good moral character and that her relations with a third party, whose name was given, “had been exclusively legitimate business relations; ” that these statements and representations the defendant believed and relied on and married the plaintiff; on information and belief that her relations with such party were notoriously meretricious and the marriage was a fraud upon the defendant; on information and belief that the plaintiff has confessed to the witness whose testimony is sought to be taken the nature of her relations with such party, and that the witness resides in London, Eng., and is about to depart from this country.

Section 871 of the Code of Civil Procedure provides that the deposition of a person not a party, whose testimony is material and necessary to a party to an action pending in a court of record, other than certain courts, may be taken in the manner prescribed. Section 872 provides that a person desiring to take a deposition may present to a judge of the court in which the action is pending, or if it is pending in the Supreme Court, to a county judge, an affidavit setting forth, among other things, the name and residence of the person to be examined and.'that the testimony of such person is material ánd necessary for the party making such application or the prosecution or defense of such action. (Subd. 4.) And rule 82 of the General Rules of Practice provides that the affidavit shall specify the facts and circumstances showing that the examination of the person is material and necessary.

The affidavit upon which the order directing that the deposition be taken was based failed to comply with this section or rule. Ro facts are set forth from which the court can see that what is sought to be proved by the person to be examined has any bearing on the issues to be tried. The action was commenced over eight years after the marriage and the testimony sought relates only to ante-nuptial acts of the plaintiff, which, if established, would not constitute a defense to the action.

It is true that there are in the affidavit certain allegations of fraud, but if they be established it would not justify the defendant in abandoning the plaintiff or maltreating her after the marriage took place. The affidavit contains a statement to the effect that defendant will ask for certain affirmative relief as a counterclaim, but what this certain affirmative relief ” will be does not appear and the court has no right to infer, in the absence of such statement, that the testimony will be necessary and material as bearing on that issue.

It is not material as bearing upon the question of the amount of alimony to be awarded. The conduct and acts of the parties, their circumstances, and condition during marriage are to be considered in determining the amount to be awarded (Goodsell v. Goodsell, 82 App. Div. 65), but I know of no authority which holds that their acts prior to marriage can be scrutinized either for the purpose pf increasing or diminishing the allowance.

After a careful consideration of the affidavit upon which the order was made I fail to see how the facts sought to be proved by the person whose deposition is directed to be taken are material for any purpose whatever and, therefore, the motion to vacate should have been granted. (Oakes v. Star Co., 119 App. Div. 358; Nocito v. Acierno, 122 id. 45; Ehrich v. Root, Id. 719.)

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Ingraham, Laughlin, Clarke and Scott, JJ., concurred.

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