
    George Maitland et al., Resp’ts, v. Central Gas and Electric Fixture Company, App’lt.
    
      (New York City Court, General Term,
    
    
      Filed June 25, 1895.)
    
    Deposition — Examination before trial.
    In an action to recover royalties, an order for the examination of defendant’s officers before trial to ascertain what goods it had manufactured. and sold during the time referred to in the complaint, will he vacated, where the answer of the defendant and the affidavit of its secretary positively deny that it had manufactured or sold, during such time, any goods covered by the patents.
    Appeal from an order, denying a motion to vacate an order for the examination of defendant’s officers before trial.
    
      Bayliss & Bayliss, for app’lt; Otis & Pressinger, for resp’t.
   Newburger, J.

— This action is brought to recover royalties under a license agreement with the defendant. The defendant, by its answer, denies that it has sold or manufactured the articles referred to in the complaint, or is liable to the plaintiffs in any sum whatsoever. The plaintiffs obtained an order for the examination of the defendant before trial, in order to ascertain what goods it manufactured and sold during the quarter beginning January 1, 1895. The defendant moved to vacate said order or an affidavit of its secretary, who stated that defendant had not manufactured and sold, or imported and sold, any electric light fixtures during the quarter sued for in this action. The motion to vacate was denied, and from the order entered, upon such denial this appeal is taken.

Without considering the question as to the sufficiency of the plaintiffs’ affidavit, we think the order for the examination of the •defendant's officers should have been vacated, for the reason that the positive statement in the answer of the defendant, and in the affidavit of Charles H. Fischer, its secretary, is that nothing has' been done during the quarter referred to in the complaint, and that the defendant had not sold or manufactured during the quarter -commencing January, 1895, any fixtures covered by the patents referred to in the license agreement.

The order appealed from must therefore be reversed, with •costs.  