
    American Woolen Company of New York, Appellant, v. Julius Altkrug, Respondent.
    First Department,
    July 7, 1910.
    Deposition — examination of witness before trial.
    The right to examine a witness before trial and the right to examine a party ' depend upon entirely different grounds. Subdivision 5 of section 872 of the Code of Civil Procedure applies only to the examination of a witness, and must be read in connection with section 882.
    In order to justify the examination of a witness before trial it must- be shown that there are special circumstances which justify a well-grounded apprehension that the examination of the witness cannot be had upon the trial as well as before trial. •
    Appeal by the plaintiff, the American Woolen Company of New York, 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 16th day of May, 1910, denying the plaintiff’s motion to vacate an order for the examination of two witnesses before trial.
    
      Edwin D. Hays, for the appellant.
    
      Louis J. Altkrug, for the respondent.
   Miller, J.:

The action is brought for goods sold and delivered. The answer sets up sixty-five counterclaims, and the defendant desires to examine two employees of the plaintiff to obtain testimony to establish said counterclaims and to ascertain the names of witnesses. The order is sought to be justified on the ground that the magnitude of the plaintiff’s business is such that only its employees have knowledge of the particular matters in issue.

The right to examine a witness before trial and the right to examine a party depend upon entirely different grounds. Subdivision 5 of section 872 of the Code of Civil Procedure applies to the examination of a witness. This court in this department has held that that subdivision must be read in connection with section 882, which specified what proof must be made to use the deposition upon the trial, and that the special circumstances, relied upon, must be such .as to justify a well-grounded apprehension at least that the examination of the witness cannot be had upon .the trial as well as before trial. (Automobile Club of America v. Canavan, 128. App. Div. 426.) We have gone to the verge of what the statute permits in reference to the examination of witnesses before trial in two cases. . (Chittenden v. San Domingo Improvement Co., 132 App. Div. 169 ; Hill v. Bloomingdale, 136 id. 652.) In each of those eases there were circumstances justifying an apprehension at least that, the testimony sought might not be available to the party applying for it on the trial, and the examination appeared to be necessary to prevent a failure of justice. Ho such special circumstances are shown to exist in this case, and we cannot extend the rule further without encroaching upon the province of the Legislature.

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

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

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