
    George E. Fischer, Respondent, v. American Exchange National Bank, Appellant, Impleaded with Camille Weidenfeld, Defendant.
    First Department,
    October 23, 1908
    Discovery — examination to frame complaint denied.
    A person seeking to recover stock which was held by one defendant as security for-a loan and which was deposited by him with a defendant bank, which holds merely as bailee and disclaims any interest .therein as against the bailor, is not entitled to.- an examination of the bank before trial in order, to. frame his . complaint. -
    Appeal by the defendant, the American Exchange National Bank, 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 2d day of July 1908, denying-a motion to vacate an order for the examination of the said defendant, and its president to enable the ¡ilaiiitiff to frame his complaint.
    
      Joseph M. Hartfield, for the appellant.
    
      H. Lionel Kringel,. for the respondent.
   Ingraham, J.:

The order • for an examination of the defendant, American Exchange National Bank, was granted upon an affidavit stating that the plaintiff had loaned Weidenfeld the sum of $6,000- to purchase the 20,000 shares of the capital stock of a mining corporation-;, that Weidenfeld subsequently told"plaintiff that he had paid the money and got the stock and agreed to hold it as security until the $6,000- ' was repaid. Subsequently plaintiff demanded the repayment of the loan, which was refused, and then demanded the stock, which was also refused, Weidenfeld stating-that he had deposited the stock with the defendant bank. The plaintiff then demanded the stock from the bank, which was refused.

It is quite evident that the examination of the defendant bank is not at all necessary to enable the plaintiff to frame his complaint, especially in view of the very full statement of the facts and circumstances under which the bank has received this stock, and the statement that the bank makes no claim upon it, but is simply a bailee, contained in the affidavits on which the motion to vacate the order was made. The plaintiff has all the information that can possibly be required to frame his complaint. The order for an examination before the service of a complaint can only be justified where it is necessary to enable the plaintiff to frame the complaint. He claims to be entitled to the possession of this stock; that it is deposited with the defendant bank, and he, therefore, had knowledge of all the facts necessary to frame the complaint. If the bank had any claim to the stock as against the plaintiff that could be set up as a defense and so was no part of the plaintiff’s cause of action. The rule applicable to an examination of an adverse party before the pleadings are framed and that after the case is at issue to obtain evidence to be used upon the trial are entirely different. An!d where the bank expressly disclaims any interest in the stock or any right to hold it as against the depositor, there is nothing to justify an order to compel an examination of the bank before service of the complaint.

The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for an examination of the defendant granted.

Patterson, P. J., Laughlin and Scott, JJ., concurred.

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