
    Louis Oppenheimer, Appellant, v. Emanuel Van Raalte and Zealie Van Raalte, Copartners, Doing Business under the Firm Name of S. Oppenheimer & Levy, Respondents.
    First Department,
    June 28, 1912.
    Discovery — examination of defendant before trial—accounting — sufficiency of affidavit.
    Where in an action to recover a balance of salary due under a written contract by which the plaintiff was employed for the years 1908 and 1909, and was to receive as salary three per cent of the net profits of the business of the defendants for each of said years, the defendant- guaranteeing that plaintiff should receive at least $6,000 each year, and the plaintiff alleges that the profits for the year 1909 were in excess of $400,000, and that he was entitled to receive $6,000 in addition to the amount paid him as salary for that year, he is entitled as a matter of right to examine the defendants before trial.
    The plaintiff cannot maintain an action for an accounting under such a contract.
    It is not necessary to allege expressly that the applicant intends to use the deposition upon the trial. If it appear from the whole affidavit that the only object of examining the adverse party is to obtain evidence which is material upon the trial for the party making the application, the affidavit is sufficient.
    A mere statement in the affidavit of the attorney for the applicant that, if the testimony should fail to prove the facts sought to be proven by the examination it would not be read, does not justify the vacation of the order, where from other facts alleged it appears that the witness must have knowledge of material facts.
    Dowling, J., dissented.
    Appeal by the plaintiff, Louis Oppenheimer, 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 26th day of April, 1912, vacating an order for the examination of the defendants before trial.
    
      Emery H. Sykes, for the appellant.
    
      Charles Trosk, for the respondents.
   Ingraham, P. J.:

This action was to recover the balance of salary due to the plaintiff under a written contract by which the plaintiff was employed for the years 1908 and 1909 and was to receive as salary three per cent of the net profits of the business of the defendants for each of said years, the defendants guaranteeing that plaintiff should at least receive $6,000 each year. For the year 1908 the plaintiff was paid $11,847.31 which would show a net profit for that year of nearly $400,000. For the second year, although the plaintiff swears that the business had continued without substantial decrease, the defendants claimed that their profits were not in excess of $200,000, and refused to make any payment above- the $6,000, which the plaintiff was paid. The plaintiff alleges that the profits for the year 1909 were in excess of $400,000, and .that he was entitled to receive $6,000 in addition to the amount that was paid him as salary for that year.

The mere statement of this cause of action is sufficient to establish that the only method the plaintiff has of proving his cause of action is to examine the defendants before trial. The plaintiff has no records of the defendants’ business, and the defendants alone can supply the legal proof to show what their net profits were for the -year 1909 to which the plaintiff was entitled to a percentage. The plaintiff cannot maintain an action for an accounting under such a contract, hut is required to bring an action at law, and for the court to refuse to allow him to examine the defendants before trial so as to prove his cause of action would be to prevent the plaintiff from having a recovery, although if such testimony had been allowed he would have a good cause of ■ action. It is conceded that upon these papers the materiality of the testimony of the defendants clearly appears, and that the plaintiff would certainly be entitled to subpoena the defendants at the trial and to prove by the testimony of his witnesses or by the enforced production of the defendants’ books what the actual net profits of the business for the year 1909 were. • Section 870 of the Code of Civil Procedure provides that the deposition of a party to an action pending in a court of record may be taken-at his own instance or at the instance of an adverse party at any time before or during the trial as prescribed in this article. Section 872 provides that the person desiring to take a deposition as prescribed in this article may present to a judge of the court in which the action is pending an affidavit setting forth among other things the name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application or the prosecution or defense of such action. Section 873 provides that the judge to'whom such an affidavit is presented must grant an order for the examination if an action is pending. I think the plaintiff in this case has brought himself clearly within these" sections of the Code of Civil Procedure and is, therefore, entitled as a matter of right to examine the defendants before trial. The facts and circumstances showing the materiality of the defendants’ evidence is stated, and it is apparent from the nature of the action and the facts stated that the evidence of the defendants upon this examination is necessary to enable plaintiff to prove the amount to which he was entitled. (Gen. Rules Pr., rule 82.) I think the. plaintiff was, therefore, entitled to the order that was granted, and it should not have been vacated.

One of the few objections to these orders which has survived is that it is necessary that it should appear from the affidavit that the party applying for the examination of his adverse party intended to use the deposition upon the trial of the action. It is not necessary that an .express allegation to that effect should appear in the affidavit, but if it appears from the whole affidavit that the only object of examining the adverse party was to obtain evidence which was material upon the trial of the action for the party making the application the order was properly granted. In this case the affidavit of the plaintiff upon which the order for the examination of the defendants was obtained states that “the testimony of each of the defendants is material and necessary for me as plaintiff in the prosecution of this action, since I am obliged to prove by their testimony the profits which were actually made by the defendants in their business during 1909, and the value and efficiency of my services. This information is wholly within the possession of the defendants, who are the exclusive proprietors of their business.” I think this allegation would have been sufficient to have justified the court in granting the application. The attorney for the plaintiff, however, supplements this,' affidavit by a statement: “If such examination is delayed until the trial of the action the trial will require a long time, books will be examined during its progress and the time of the court will be greatly wasted. It is our purpose to read this testimony in evidence at the trial of this action, unless it is of a character very different from what we anticipate.” And it was said by the court below and is claimed by counsel on this appeal that because of this statement in the affidavit of the attorney for the' plaintiff this order was improperly granted. We have held under ordinary circumstances that the party must make the affidavit and it is upon his statement of the object of the examination that the court was justified in proceeding. As before stated, his affidavit was sufficient to justify the court granting this application. His attorney states his intention as to the use of the deposition of the defendants when taken. He states that it is their intention to use it on the trial unless it is different from what they anticipate it will be, a qualification Which seems to me to be entirely immaterial, as in every case when an intention to use a deposition on the trial is made it is of course subject to the qualification that if for any reason the deposition should not prove the fact that the party stated he expects to prove by the examination of the witness it would be useless to read the deposition, as it would not tend to prove the cause of action and it would not be competent evidence. The statute does not require a party taking a deposition before trial to read the evidence taken on the trial, but by section 881 of the Code of Civil Procedure it is provided that the deposition or a' certified copy thereof may be read in evidence by either party at the trial of or upon the assessment of damages, by writ of inquiry, or upon a reference, or otherwise, in the action or in any special proceeding specified in the original affidavit or stipulation, or in any other action or special proceeding thereafter brought between the same parties or between any parties claiming under them or either of them, thus allowing either party to use the testimony of a witness taken under an order provided for in this article of the Code but without requiring either party to read such deposition. It must, of course, appear from the papers presented that the application is made in good faith for the purpose of obtaining testimony to be used upon the trial of the action, and the facts tending to show that the testimony of the witness is material and necessary to be used on the trial must appear to justify the taking of evidence; but where it does appear that the testimony that the witness can give will be material to the party making the application, and that the application is made in good faith for the purpose of obtaining testimony to be used upon the trial, a mere statement in the affidavit of the attorney for the party making the application that if the testimony should fail to prove the facts which the party making the application has sought to prove by the examination it would not be read, where from other facts alleged it appears that the witness must have knowledge of the facts which are material, does not justify the vacation of the order.

It follows, therefore, that the order appealéd from must be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendants denied, with ten dollars costs.

Laughlin, Clarke and Miller, JJ., concurred; Dowling, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  