
    Anton Schulte, Appellant, v. Joseph Petruzzi, Respondent.
    
      Discovery—examination of party before trial.
    
    Appeal by the plaintiff from an order of the Supreme Court, entered on the 9th day of April, 1913, denying his motion to vacate an order for Ms examination before trial.
   Scott, J.:

The action is for an injunction to restram defendant, for-merely plaintiff’s partner, from soliciting former customers of the firm and otherwise using its good will. The complaint contains the allegations usual in such eases, as to what defendant is domg and has done. The answer consists mainly of denials except as to some relatively unimportant matters which are admitted and embraces no affirmative defense. As was said by this court m Oakes v. Star Company (119 App. Div. 358): “ 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 maMng the application, * * * and it is mcumbent upon the party seeking the examination to make this fact appear.” In this regard the defendant has wholly failed. He does not suggest and we cannot imagine what evidence he can expect to extract from plaintiff wMch will be necessary to his defense. The oMy apparent purpose for such an examination is to discover M advance of the trial what evidence plaintiff has to support his complaint. TMs is not the legitimate purpose of such an examination. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  