
    Frank Hart, Plaintiff, v. The American Cotton Co., Defendant.
    (Supreme Court, New York Special Term,
    October, 1903.)
    Examination before trial — Requisites — Not granted for an • ulterior purpose — Distinction, as to the production of books, between an examination before trial and a discovery of papers.
    An order for an examination before the trial of an action cannot be procured unless the moving party shows by affidavit that the parties sought to be examined can testify to facts material to the issue.
    Where a purchaser of the stock, of a corporation, claiming to have been induced to buy its stock by false representations of its officers as to its financial condition and seeking rescission, obtained an order to examine certain of its officers before trial the court vacated the order upon proof that they did not become such officers until after the sale was made.
    Such an order should not contain a provision requiring the officers to produce for inspection the books of the corporation where such production is not desired to refresh the recollection of the witnesses but only to make it possible for the moving party to make extracts from the books.
    An examination before trial (Code Civ. Pro., § 873), is a proceeding entirely distinct from and cannot be joined with a proceeding for the discovery of papers (Code Civ. Pro., §§ 803-809), and so much of Code Civ. Pro., § 872, subd. 7, as relates to an examination and inspection of the books of a corporation is intended to compel production of them so that they may be used only and solely as an incident to and in connection with the examination of a witness who is able to testify from them.
    Motion to vacate an order for the examination of the vice-president and three directors of defendant corporation.
    Richard T. Greene, for plaintiff.
    Sullivan & Cromwell, for defendant.
   Clarke, J.

Motion is made, upon the original papers and additional affidavits, to vacate an order for the examination of the vice-president and three directors of the defendant corporation. Only two of the parties sought to he examined have been served with the order and no papers have been served on the defendant’s attorneys. Without passing upon the technical objections raised on the motion, I am of opinion that the order granted ex parte must be vacated. The complaint alleges that the plaintiff, on August 15, 1899, purchased shares of stock of the defendant company from the company; that he was induced to make this purchase by reason of certain alleged representations with regard to the financial condition of the company; that these representations were false, and demands judgment that the contract of sale be cancelled and declared void, and that, upon surrender of the certificates, he recover the sum paid for the stock. The answer is a general denial. The order, which the defendant moves to vacate, provides that the parties named therein be examined and their depositions taken, pursuant to section 873 of the Code of Civil Procedure, and directs them to produce for inspection the books of the defendant corporation. To entitle the plaintiff to examine the parties served with the order it must appear in the affidavits that their examination is material and necessary. The testimony of a person is held to be material and necessary where it appears that such person can testify to facts material to the issue. Leary v. Rice, 15 App. Div. 397; Dudley v. New York Filter Mfg. Co., 80 id. 164; General Rules of Practice, rule 82. The gravamen of the complaint is that on and prior to August. 15, 1899, false representations were made to the plaintiff by the officers, agents and servants of the defendant company as to the assets, earnings, profits and surplus of the company, whereby the plaintiff was induced to purchase stock of the company on the 15th of August, 1899. The examination of the parties sought cannot relate to these representations, for it appears in the affidavits submitted that they were not officers or in the employ of the company until after the date of sale. The only purpose for the examination disclosed in the motion papers is to obtain inspection of the books of the company to prove that the real condition of the defendant corporation at the time of the sale was as alleged in the complaint and not as stated to the plaintiff by the then officers .and agents of the company. As the parties sought to be examined were not at that time connected with the company, they have no knowledge of these facts. They would not be able to refresh their recollection and testify from the books. The information could, therefore, only be secured by making extracts from the books of the company. This may not be done under an order to examine a party before trial. Subdivision 7 of section 872 of the Code of Civil Procedure, relating to an examination and inspection of the books of a corporation, is intended to compel the production of such books in order that they may be used simply as an incident and in connection with the oral examination of a witness, who can testify from them, and not for the purpose of allowing an inspection and examination of them by the adverse party. People v. Armour, 18 App. Div. 584; Duffy v. Consolidated Gas Co., 59 id. 580; Matter of Sayre, 70 id. 329. The proceeding for the discovery of papers (Code Civ. Pro., §§ 803-809) is entirely distinct from that relating to the taking of depositions under section 870 et seq. Mauthey v. Wyoming Co. Co-op. Fire Ins. Co., 76 App. Div. 579. The two are independent proceedings and cannot be united under one order. Bloodgood v. Slayback, 62 App. Div. 315.

Motion granted, with ten dollars costs.  