
    Gustave Segschneider and Rudolph G. Segschneider, Appellants, v. Waring Hat Manufacturing Company, Respondent.
    Second Department,
    October 12, 1909.
    Deposition — examination of party before trial — sufficiency of moving papers — materiality and necessity of examination.
    Where it is apparent that the real purpose of an examination of plaintiffs before trial is to discover their testimony and to prepare evidence to meet it, the examination will be denied.
    
      Where the papers on a motion for the examination of a party before trial show that plaintiff is suing to recover for the use of certain machines delivered to defendant pursuant to a contract of hiring; that the defense is that there was a sale and that the purchase price has been paid, and the moving affidavit fails to state any fact from which it can be inferred that the testimony of the plaintiffs is either necessary to enable defendant to prove the real contract or material to his defense, the motion will be denied.
    Where the answer setting up defendant's version of the contract was made and verified as upon actual knowledge, a statement in the moving affidavit that the testimony as to the contract can be obtained from no other source than by examining the plaintiffs is a mere conclusion, for some one must have acted for defendant in making the same.
    A statement in the moving affidavit that the examination is material and necessary to enable the defendant to “ properly proceed with the defense of this action and prepare for the trial,” is not a sufficient ground for the order. Hirschberg, P. J., and Gaynor, J., dissented.
    Appeal by the plaintiffs, G-ustave Segschneider and another, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of April, 1909, denying the plaintiffs’ motion to vacate an order bearing date the 13 th day of March, 1909, directing them to appear for examination before trial, and also from the said order directing their examination.
    
      Sydney A. Syme, for the appellants.
    
      Robert D. Eggleston, for the respondent.
   Burr, J.:

It appears from the verified complaint, which was made a part of the papers upon which the motion to vacate was based, and also from the affidavit upon which the order for examination was i granted, that the action is brought to recover the fair and reasonable value of the use of certain machines for curling hat brims furnished by the plaintiffs to the defendant and delivered at its factory. The answer, which is also made a part of the papers used on the motion to vacate, denies any agreement to pay for the use of the machines, but -alleges the sale thereof by the plaintiffs to the defendant and payment of the purchase price. The affidavit upon which the order for the examination was granted states that the defendant desires to examine the plaintiffs to prove the contract set up in the * * * defendant’s answer and to disprove the contract set up in plaintiffs’ complaint.’’ The statute requires that the affidavit upon which the order is granted shall state that “ the testimony of such person is material and necessary for the party making such application or the prosecution or defense of such action.” (Code Civ. Proc. § 872, subd. 4.) This provision of statute is amplified by the rule to the effect that the affidavit shall specify the facts and circumstances which show, in conformity with subdivision 4 of section 872, that the examination of the person is material and necessary.” (General Rules of Practice, rule 82.) Although the strict rules of construction at one time applied have been somewhat relaxed, the provisions of the Code and of the rule have not been changed. (Irving v. Higgins, 131 App. Div. 184; Oakes v. Star Co., 119 id. 358; Loewy v. Gordon, 129 id. 459.) As was said in Oakes v. Star Co. (supra): “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 * * *, and it is incumbent upon the party seeking the examination to make this fact appear.” It is still necessary to show that the party sought to be examined has knowledge of the material issues involved, “ and this must be established not by mere assertion of the affiant’s conclusions to that effect, but of facts from which the justice to whom application is made can himself draw the necessary conclusions.” (Grant v. Greene, 118 App. Div. 850, 852.) The affidavit upon which the order for examination was granted fails to state a single fact from which it can be inferred that the testimony of the plaintiffs is necessary to enable the defendant to prove what the real contract was. If there was a contract, some one must have acted for the defendant in making it and must be conversant with the provisions thereof. The answer in the case, which sets up that the contract was one of sale and not of hiring, is not made upon information and belief, but upon aetual.knowledge, and was verified by the same person as president of the defendant company who makes the affidavit to obtain the order for examination. The statement in the affidavit, therefore, that the testimony as to the contract can be obtained from no other source than by examining the plaintiffs is a mere conclusion, and contrary to the facts as they appear in the case. The general allegation as to the necessity for the examination because the plaintiffs may die before the trial of the action or be absent from the trial thereof or absent themselves from the jurisdiction of the court is based upon conclusions or hypotheses and not upon facts. The defendant is not called upon, in the first instance, to prove its defense, and if all of the plaintiff's are dead or absent themselves from the jurisdiction when the case comes on for trial, it would seem that the plaintiffs would have far greater difficulty in establishing their cause of action than the defendant its defense. Again, no fact is stated from which it can be found that the testimony of the plaintiffs is likely to be material to the defense of this action. The plaintiffs have, by a complaint verified by one of them, stated that the contract was one of hiring. Ho fact is stated from which the court can conclude that they will testify that it was one of sale and that in verifying the complaint the person to be examined committed perjury. If he did, he could not be examined to prove that. (Yamato Trading Co. v. Brown, 27 Hun, 248; Greensward v. Union Dime Savs. Inst., 59 How. Pr. 399.) The real purpose of the examination is apparent from the affidavit of one of defendant’s attorneys used on the application for the order, in which he says that the examination is material and necessary to the defendant to enable it to “ properly proceed with the defense of. this action and prepare for the trial thereof.” This is not a sufficient ground for an examination of a party before trial. (Diefendorf v. Fenn, 125 App. Div. 651.) It is quite apparent that the real purpose of obtaining the order to examine the plaintiffs was to ascertain in advance of the trial what the testimony of the plaintiffs would probably be respecting the contract, and to prepare evidence to meet it. An examination will not be allowed for such a purpose. (Hartog & Beinhauer C. Co. v. Bichmond Cedar Works, 124 App. Div. 627; McCormack v. Coddington, 98 id. 13; Knight v. Morgenroth, 93 id. 424.) There was also submitted in connection with the application for the order of examination an affidavit to the effect that one of the plaintiffs, Rudolph G-. Segsehneider, had stated that by the time the case was reached for trial he would not be within the State, but would be in Missouri. This alone would not be sufficient to sustain the order. But there is no fact stated .from which it can be inferred that Rudolph G. Segsehneider was the party with whom the transactions relative to the machines were held. On the contrary, the affidavit of the president of the defendant is to the effect that the testimony of his coplaintiff is that which is specially desired.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for examination should be granted, with costs. •

Jenks and High, JJ., concurred ; Hikschberg, P. J., and Gaynor, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination granted, with costs.  