
    H. E. Lesen Advertising Agency, Respondent, v. George W. Perkins, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1916.)
    Depositions — who entitled to order for examination before trial — affidavit to obtain order before trial — associations — agency.
    A party is entitled to an order for the examination of an adverse party before trial only upon proof that such examination is material and necessary.
    In an action for money laid out and expended for defendant at his special instance and request, an affidavit to obtain an order for the examination of defendant before trial stated that he and other members of the national committee of the Progressive party held a meeting for the purpose of planning the advertising campaign of that party; that the defendant was chairman of the executive committee of the national committee and had control of the advertising and of all expenditures for the same and he approved of a plan for such advertising and authorized the meeting to make the arrangements necessary to carry such plan into execution; that the meeting thereupon requested the president of the plaintiff company to employ the plaintiff for such purpose; that in pursuance of such employment the plaintiff expended the moneys to recover which this action was brought; and that the defendant approved the material prepared by the plaintiff in the course of such employment and authorized' the expenditure by the plaintiff of necessary moneys to place such advertising in accordance with the material so approved by him.
    Held, that as it clearly appeared that defendant was acting as agent of an association and disclosed his agency, a motion to vacate the order should have been granted, but without prejudice to a renewal of the motion upon proper affidavits.
    Appeal by the defendant from an order of the City Court of the city of New York, denying defendant’s motion to vacate an order granting an examination of the defendant before trial.
    Hawkins, Delafield & Longfellow (Lewis L. Delafield, Jr., and Louis J. de Milhau, of counsel), for appellant.
    Morris & Plante (Guthrie B. Plante and Charles E. Mahony, of counsel), for respondent.
   Lehman, J.

The plaintiff sues upon an implied contract for moneys “ laid out and expended for the defendant and at his special instance and request.” The answer is a general denial. The plaintiff obtained an order for the examination of the defendant before trial. The affidavit upon which the order was granted states that the defendant’s testimony was “ material and necessary ” and then sets forth the facts upon which this conclusion is based. These facts are briefly that the defendant and other members of the national committee of the Progressive party held a meeting for the purpose of planning the advertising campaign of that party; that the defendant was chairman of the executive committee of the national committee and had control of the advertising and of all expenditures for the same and he approved of a plan for such advertising and authorized the meeting to make the arrangements necessary to carry such plan into execution; that the meeting thereupon requested the president of the plaintiff company to employ the plaintiff for such purpose; that in pursuance of such employment the plaintiff expended the moneys to recover which this action was brought; and that the defendant approved the material prepared by the plaintiff in the course of such employment and authorized the expenditure by the plaintiff of necessary moneys to place such advertising in accordance with the material so approved by him. It will be seen from this statement that if the plaintiff prove these facts it will show that the moneys were expended not for and at the request of the defendant but for and at the request of an association of which the defendant is a member. Such evidence would manifestly not make out the cause of action alleged. Rich v. Wright, 57 App. Div. 236; Brown v. Wolfe, 119 id. 777. The defendant consequently moved to vacate the order on the ground that such evidence would not be material. The plaintiff, however, contends that inasmuch as the affidavit shows that defendant personally authorized the meeting to employ the plaintiff; approved the plans and authorized the expenditure, a personal undertaking to repay the moneys is not inconsistent with defendant’s character as an agent, provided he contracted in such form as to make himself personally liable and that the .evidence which he seeks to elicit would be material as part of his case to prove the assumption by the de- • fendant of a personal liability. These propositions of law are well established (Meyer v. Redmond, 205 N. Y. 478; De Remer v. Brown, 165 id. 410), but they have no application upon this motion. A party is entitled to an order for examination only upon proof that the examination is material and necessary. The proof in this case is confined to facts showing clearly that the defendant was acting as agent of an association and disclosed his agency. There is not a scintilla of evidence that he bound himself personally and consequently not a scintilla of evidence t,o show that the examination is material to the cause of action.

It follows that the order must be reversed with ten dollars costs and disbursements and the motion to vacate granted with ten dollars costs but- without prejudice to the right of the plaintiff to renew upon proper affidavits.

Weeks and Delehanty, JJ., concur.

Order reversed, with ten dollars costs and disbursements.  