
    Frank W. Shumaker and George H. Middlebrook, Respondents, v. Doubleday, Page & Company, Appellant.
    First Department,
    December 7, 1906.
    Deposition — examination of officers of corporation ’ before trial—order should require examination of corporation — examination not -proper, to obtain inspection of books and papers.
    Ah order to examine a corporation before trial should require ithe examination-of the corporation-, and should not run against its officers individually.
    Nor should such order be made the means of obtaining an inspection of the defendant’s books arid papers under the guise of an examination of its officers,, and when this appears to be the object, and the officers sought to be examined have no personal knowledge of the records and thus no memory to be refreshed thereby, the order for examination will be reversed on the merits.
    Appeal by" the defendant, Doubleday, Page & ■ Company, from so much of 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 ,15th day of October, 1906, as denies1 the defendant’s motion to vacate an order for examination before trial.
    
      Frederic R. Kellogg, for the appellant.
    
      Sidney Rosenbaum, for the respondents.
   Scott, J.:

The order for examination, which the order appealed from refused to vacate, is addressed to Frank FL Doubleday, president, and Samuel A. Everitt, treasurer, of the defendant corporation. It does not purport to require the company to be examined, but runs against its officers individually. It has recently been decided by this court that there is no authority for such an examination of an officer of a corporation as such, apart from the examination of the corporation itself. (Jacobs v. Mexican Sugar Refining Co., Ltd., No. 2, 112 App. Div. 658.) For this reason alone the motion to vacate should have been granted, and the order appealed from must be reversed. Apart from this consideration we think that the motion should have been granted on the merits. It was made quite clearly to appear that fhe real purpose of the order was to obtain an inspection of defendant’s papers and records, under the guise of an examination of its officers, and that the officers sought to be examined had never had any personal knowledge concerning these records, and had, therefore, no memory to be refreshed ” by consulting them. While this court is committed to the doctrine that the provisions of law respecting the examination of parties before trial should be construed and applied with liberality in the interest of justice, we' are not disposed to permit the procedure in this regard to be used for purposes not warranted by the Code, which prescribes a quite different method of procedure when a party is entitled to and desires an inspection of his opponent’s books and papers.

The order should be reversed, with ten dollars costs, and motion granted, with ten dollars costs.

Patterson, Ingraham, -Laughlin and Clarke, JJ., concurred. -

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