
    Simon E. Bernheimer, Respondent, v. Josephine Schmid, Appellant.
    
      Examination of a party before trial—whm proper in an action for the dissolution of a copartnership.
    
    In an action brought for a dissolution of a copartnership an interlocutory decree for an accounting follows almost as a matter of course, upon which a defendant has full opportunity. to examine the plaintiff and also the partnership' i - books on all subjects connected with the partnership. In such a case an order | directing the examination of the plaintiff before trial should not be granted, unless it is absolutely necessary in order to protect the defendant’s rights and . enable her to prepare for trial. .
    Appeal by the defendant, Josephine Schmid, 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 11th day. of February, 1901, vacating an order directing the examination of the plaintiff before the trial.
    
      Roger Foster, for the appellant.
    
      William A. Jenner, for the respondent.
   Per Curiam :

In this action, brought for a dissolution of a copartnership and a disposition of its property, the learned judge at Special Term has correctly stated that an interlocutory decree for an accounting must follow almost as a matter of course. TJpon such an accounting the defendant will have full opportunity not alone to examine the plaintiff on all subjects connected with the partnership, but also to thoroughly examine the partnership books. To allow an examination before trial to the extent asked, would necessarily result in a double accounting, one upon the plaintiff’s examination and the other after the interlocutory decree.

This, as it would involve double labor and expense and virtually two accountings, should be avoided unless absolutely necessary in order to protect the defendant’s rights and enable her to prepare for trial.

Without going over in detail the items as to which she has asked to examine the plaintiff and obtain from him desired information, it. can be stated generally concerning them that they relate to matters which will not be inquired into upon the trial, but which will properly arise upon the accounting after the interlocutory decree. Thus the entries in the books, whether they are true and complete or untrue and incomplete, and the extent of the assets, whether correctly stated therein, will have no place at the trial, although they are very pertinent to the accounting after the interlocutory judgment.

Regard being had to the issues raised by the pleadings, however, there are two subjects which may properly be inquired into at the present-time and concerning which the interlocutory judgment may make some disposition, namely, first, the nature and extent of the good will and trade marks which, with the other property, the plaintiff asked to have sold, and of which the defendant expressed a wish to avail herself after the dissolution ; and, secondly, the real estate .rented and used- by the partnership which plaintiff asserts and defendant denies is partnership property. Hpon these matters, the facts concerning which are peculiarly within the knowledge of the plaintiff, who at all times has had the active management of the copartnership, we think the defendant should be allowed to examine him to the end that she may be prepared to meet such proof as may be offered on the trial.

The order, therefore, should be modified accordingly and, as so modified, affirmed, without costs.

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

Order modified as directed in opinion, and as modified affirmed, without costs.  