
    Allen H. Stem, Individually and as Surviving Partner of the Firm of Reed & Stem, Appellant, v. Whitney Warren and Charles D. Wetmore, Composing the Firm of Warren & Wetmore, Respondents, Impleaded with William J. Reed, as Executor, etc., of Charles A. Reed, Deceased, Defendant.
    First Department,
    March 20, 1914.
    Practice — examination of defendant before trial — suit by surviving partner for accounting.
    Two firms of architects entered into a written agreement with a railroad company to prepare plans and supervise the construction of certain buildings. After the death of a member of one firm, the railroad company, pursuant to the terms of the contract, gave notice, in writing, of its intention to terminate the same, and thereafter entered into a contract with the other firm for the completion of the work. In a suit by the surviving member of the first firm against the second firm for an accounting, held, that an order for the examination of the defendants before trial should be modified so as to limit it to the facts and circumstances leading up to and attendant on the cancellation of the contract, and the making of the new agreement.
    McLaughlix and Clarke, JJ., dissented, with opinion.
    Appeal by the plaintiff, Allen H. Stem, individually and as surviving partner, etc., 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 5th day of January, 1914, resettling a prior order entered in said clerk’s office on the 30th day of December, 1913, vacating an order for the examination of the defendants before trial.
    The action was brought for an accounting.
    
      Harold Swain, for the appellant.
    
      Charles F. Mathewson, for the respondents.
   Ingraham, P. J:

The order appealed from should be reversed, with ten dollars costs and disbursements, and the order for examination modified so as to limit the examination to the facts and circumstances leading up to and attendant on the cancellation of the contract between the railroad company and the associated architects, and the making of the new agreement with Warren & Wetmore; and the order for the examination as thus modified is reinstated.

Laughlin and Scott, JJ., concurred; McLaughlin and Clarke, JJ., dissented.

McLaughlin, J. (dissenting):

I am unable to concur with the other members of the court that the order appealed from should be reversed and the motion for an examination granted in so far as to permit the defendants Warren & Wetmore to be examined concerning the facts and circumstances leading up to and attendant upon the cancellation of the contract between the New York Central and Hudson River Railroad Company and the associate architects, and the making of the new agreement by the railroad company with Warren & Wetmore.

On February 8, 1904, two firms of architects, Warren & Wetmore and Reed & Stem, entered into a written agreement by which they associated themselves together as firms and not as individuals for the purpose of preparing plans and supervising the construction of certain buildings in connection with the improvement of the Grand Central terminal. On the same day, as associated architects, they entered into a contract with the New York Central Railroad Company which provided, among other things, as follows: “The Railroad Company reserves, and the architects covenant and agree that the Railroad Company shall, at all times, have the right to terminate the employment of the architects upon the work or any part thereof herein provided for, by giving notice in writing to the architects or their executive head of intention so to do; and the employment of the architects under the provision hereof shall be terminated and ended accordingly, upon such date as may be specified in any such notice in writing.”

On the 12th of November, 1911, Mr. Reed, who was the principal member of the firm of Reed & Stem, and the executive head of the associated architects, died, and a few days thereafter the railroad company, acting under the provision of the contract quoted, notified Stem, as survivor of the firm of Reed & Stem, and Warren & Wetmore of the termination of the employment of the associated architects, and that such termination would become effective on December 31, 1911. On the day the notice was given it entered into another contract with Warren & Wetmore to take charge of and complete the work from and after December 31, 1911.

Warren & Wetmore are to be examined as to the facts and circumstances leading up to the cancellation of the contract with the associated, architects and the making of the new contract. Testimony upon these subjects is not material or relevant to any legal claim of the plaintiff. The railroad company had the right to cancel the contract and having that right it could then make a new contract with Warren & Wetmore. Upon the face of the complaint, as I read it, the plaintiff is not in a position to complain of the cancellation of the old contract, or the making of the new one. It is suggested, not by counsel, that on an appeal from an order directing the examination of a party before trial, the court will not examine the complaint for the purpose of ascertaining whether it states a cause of action. As a general proposition this may be true, but before an adverse party can be examined after issue has been joined in an action, it must affirmatively appear that such examination is material and necessary for the person applying therefor in the prosecution or-defense of such action (Code Civ. Proc. § 872, subd. 4; General Rules of Practice, rule 82; Del Genovese v. Del Genovese, 149 App. Div. 266; Oakes v. Star Co., 119 id. 358), and for the purpose of ascertaining that fact not only the moving affidavits, but the pleadings as well, will be examined. Unless it does appear that the testimony sought to be elicited is material and necessary, the examination will be denied. This court so held in Oakes v. Star Co. (supra), saying: “While this court has somewhat relaxed the strict rules which have heretofore so operated as to greatly restrict the right of a party to examine his adversary as a witness before trial, it has not been our purpose to permit the disregard of the provisions of law relative to the facts necessary tó be shown in order to obtain an order for such examination, or to permit such an examination to be had when it is apparent that no useful purpose can be served. It is still necessary to show, by the recitation of appropriate facts and circumstances, that the testimony sought to be elicited is material and necessary for the party making the application.”

Here, it clearly and conclusively appears, as I read the record, that no useful purpose can be served” by thé examination. The railroad company, as indicated, had a right to cancel the contract with the associated architects and make a new one with Warren & Wetmore. What induced them to do so is no concern of the plaintiff.

I, therefore, dissent from the decision about to be made by the other members of the court and vote to affirm the order.

Clarke, J., concurred.

Order reversed, with ten dollars costs and disbursements; order for examination modified as directed in opinion and as modified reinstated. Order to be settled on notice.  