
    Mary A. Reynolds, Plaintiff, v. John J. Reynolds, Defendant.
    (Supreme Court,
    New York Special Term, June, 1913.)
    Divorce — action for—'exercise of constitutional privilege in refusing to testify as to acts of adultery — examination before trial — depositions.
    That the defendant in an action for divorce may exercise his constitutional privilege and refuse to testify as to the acts of adultery alleged in the complaint is not a valid reason for denying plaintiff’s right to an order for the examination of defendant before trial as to such acts, but no inquiry can be made as to his property or income.
    Motion to vacate an order for the examination of the defendant.
    
      Lesser Brothers, for motion.
    Robert Kelly Prentice, opposed.
   Giegebich, J.

The only matters which, by her affidavit, the plaintiff shows that she expects to establish by the examination of the defendant before trial are the acts of adultery charged against him in the complaint and the amount of his property and income. Although the defendant is privileged as to the first ground, this does not constitute a valid reason for denying the plaintiff’s right to the order for his examination, since the privilege is a personal one and may not be insisted upon. At all events, the question should be reserved until the examination occurs and can then be disposed of by the justice before whom it is conducted. Ryan v. Reagan, 46 App. Div. 590; Matter of Sayre, 70 id. 329; Bioren v. Canadian Mines Co., 140 id. 523; Peterson v. Fowler, 143 id. 282. While the order in its entirety will not be vacated on the ground that the defendant will be privileged from testifying, his examination in advance of the trial relative to his property and income cannot be sanctioned. In Danzinger v. Danzinger, 68 Misc. Rep. 452, which was an action for divorce, an examination of the husband before trial was sought concerning his property and income, and in vacating the order I took the ground, among others, that the testimony which the wife desired to obtain was material only upon the question of alimony and that alimony was a mere incident to the cause of action itself, and, logically, a matter which ought not to be gone into at all until the guilt of the husband was first established. The Appellate Division of this department, in the subsequent case of Van Valkenburgh v. Van Valkenburgh, 149 App. Div. 482, took the same view, saying: “The question of defendant’s financial condition in reference to any award of alimony does not become an issue until plaintiff has succeeded in establishing her right to the judgment which she seeks. Should she fail in her action, or should the defendant recover judgment in his favor upon his counterclaim wherein he asks for relief, the information sought by the examination would be immaterial, unnecessary and useless.” In the present case the averments of the defendant’s alleged adultery and of the residence of the plaintiff are denied,, and any inquiry as to his property or income would be manifestly improper .until such issues had been established against him. Motion to vacate the order for the examination of the defendant denied, but his examination will be limited to the question of adultery, in respect of which he is at liberty to claim that he is privileged from testifying.

Ordered accordingly.  