
    George B. Herzig and Others, as Trustees for the Benefit of the Creditors of H. Leonard Simmons, Doing Business as H. Leonard Simmons & Company, Respondents, v. Washington Fire Insurance Company, Appellant.
    First Department,
    April 21, 1911.
    Discovery—examination before trial to avoid defenses ■— examination of corporation — proof that person to testify is officer.
    In an action on a Are insurance policy the plaintiff is not entitled to exam- ' ine the defendant before trial in order to avoid the defense that the plaintiff made a false proof: of loss, swore falsely and produced fraudulent proofs upon an examination had pursuant to the terms of the policy.
    While in some cases the courts will permit a plaintiff to. examine the defendant before trial as td an affirmative defense, the evidence to-be elicited must be nfecessary and material to -the moving party and such as he intends to use" at trial. It is only in rare and exceptional- eases, if at all, that the court will permit an examination of a defendant to avoid an affirmative defense. I
    There is no presumption that the “Managing agent” of a foreign insurance company doing business here is ah officer, and hence on a motion for the examination of such corporation before trial the moving papers are insufficient if they merely state that the person through whom the examination of the corporation is desired is the managing agent. The plaintiff must show 'affirmakvely that he is an officer or director.
    Appeal by the defendant,' the Washington Fire Insurance Company, from an order ¡of 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 9th day of March, 1911.
    
      Charles Goldzier, for Ihe appellant.
    
      Clayton J. Heermance, for the respondents.
   Scott, J.:

Defendant appeals from an order denying its motion to vacate an order for its examination by Walter MacBain, described as its managing agent " within the city .'and State of New York. The plaintiffs sue as trustees for the benefit of the creditors of H. Leonard. Simmons upon a policy of fire insuranee issued by defendant. The complaint is in the form commonly used in such actions, and the answer, besides certain denials, contains two affirmative defenses, one that the insured made false and fraudulent proofs of loss, and the other that he swore falsely and produced fraudulent proofs upon an examination had pursuant to the terms of the policy. It is apparent from the affidavit upon which the order was granted that the plaintiffs’ purpose is not to obtain evidence to support their case, or even to controvert the case'which may be made by defendant, but is to gather such information as to the proofs in defendant’s possession, as will enable them, in the language of the affidavit, “to avoid the defenses.” The courts are at present disposed to grant orders for the examination of adverse parties with great liberality, even to the extent, in some cases, of permitting a plaintiff to examine the defendant as to an affirmative defense, but it still remains necessary that the evidence to be elicited is of such a character that it may be necessary and material to the moving party, and that he intends to use it upon the trial, but it is only in rare and exceptional cases, if at all, that the court will permit a plaintiff to pry into his opponent’s defense merely for the purpose of “avoiding” it on the trial. (Tuthill v. Schinasi, 141 App. Div. 520.) Upon this ground the motion to vacate should have been granted. It is also objected that it does not appear from the affidavit on which the order was granted that the person to be examined was an officer of defendant, for a corporation can be examined only* through an officer or director, (Code Civ. Proc. § 872, subd. 7.) The party to be examined is described as a “Managing agent” which 'does not import, as language is ordinarily used, that he is an officer. There is no magic in names, however, and it may be in some cases and especially with reference to foreign corporations doing business in this State that the relation to the corporation and the duties of a person called a managing agent are such as to indicate that he is in fact an officer. But if this be so it is incumbent upon the party applying for the order to cause the fact affirmatively to appear, for there is no presumption that- an agent, 'managing or otherwise, is an officer.

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. ¡ . ■

Ingraham, P. J., McLaughlin, Miller and Dowling; JJ., concurred: " • •

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