
    Isais Vejarano, Respondent, v. Nicholas Bruning and Others, Copartners Doing Business under the Firm Name and Style of Mecke & Company, Appellants.
    First Department,
    December 31, 1914.
    Discovery- —examination of defendant before trial — scope of examination in suit for an accounting.
    Where so-called defenses in an action involving an accounting are substantially the negative of the matters which the plaintiff will have to prove as a part of his affirmative case, an order for the examination of the defendant before trial may be granted.
    
      But such an order allowing an examination “upon the issues in tills action ” is too broad as it would permit an examination as to matters pertaining solely, not to the right to an accounting, but to the measure of defendant’s accountability.
    A plaintiff may examine the defendant upon all issues involving the right to an accounting, but not as to issues which may arise only in the event that he succeeds in establishing defendant’s duty to account.
    A plaintiff, except under unusual circumstances, has no right to examine a defendant before trial as to facts which must be affirmatively established as a part of the defense.
    Appeal by the defendants, Nicholas Bruning and others, copartners, etc., 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 28th day of October, 1914, denying a motion to vacate an order for the examination of the defendant Nicholas Bruning before trial.
    
      Earle T. Fiddler, for the appellants.
    
      Vine H. Smith, for the respondent.
   Per Curiam :

The order for the examination of Nicholas Bruning states that such examination is to be upon the issues in this action.” Plaintiff may examine defendant upon all issues involving plaintiff’s right to an accounting but not as to issues which may arise only in the event that he succeeds in establishing defendant’s duty to account. Nor has plaintiff, except under unusual circumstances (which do not exist here), any right to examine as to any fact which defendants must affirmatively establish as part of their defense. These familiar principles are well settled in this department. (Del Genovese v. Del Genovese, 149 App. Div. 266; Lawson v. Hotchkiss, 140 id. 297; Tuthill v. Schinasi, 141 id. 520.) Plaintiff on the ground of fraud seeks to set aside his alleged abandonment of the policy, his consent to change of beneficiary, and as well his assignment of the policy, but he admits that the policy and its proceeds should stand as collateral for his indebtedness to defendants, if any. The so-called defenses as pleaded are substantially merely the negative of the matters which plaintiff will have to prove as part of his affirmative case, and -under these circumstances plaintiff’s right to examine should not be denied. The order, however, is too broad, inasmuch as it would permit an examination as to matters pertaining solely, not to the right to an accounting, but to the measure of defendants’ accountability. The order should be modified so as to provide that an examination may be had concerning all transactions relating to the delivery and pledge of the policy to the defendants; the release of plaintiff’s interest therein by abandonment or otherwise; to the circumstances under which the change of beneficiary was made, and also as to the state of the accounts between the parties as of the aforesaid periods. The latter feature is one which may have some bearing upon the question as to whether the transfer of the policy was or was not fraudulently obtained, and whether it was absolute or as collateral security. As so modified the order should be affirmed, without costs to either party.

Present—Ingraham, P. J., McLaughlin, Scott, Dowling and Hotchkiss, JJ.

Order modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.  