
    (90 Hun, 62.)
    In re ERIE MALLEABLE IRON CO., Limited. In re GOULD COUPLER CO.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1. Discovery—Examination op Party—Framing Pleadings.
    It is no defense to an application for an order to examine defendant to aid plaintiff in framing his complaint that plaintiff has failed to perform his part of the contract on which the intended action is to be brought, as such claim can be litigated only on the trial of the action.
    2. Same—Relief by Other Action as a Defense.
    It is no defense to such application that the moving party could, by an action for an accounting, have elicited the information sought on the trial.
    Appeal from special term, Erie county.
    Application by the Erie Malleable Iron Company, Limited, to take the deposition of the Gould Coupler Company, to enable petitioner to frame its complaint in an action about to be brought by it against said coupler company. The application was granted. Afterwards a motion to vacate the order granting the application was denied, and the Gould Coupler Company appeals. Affirmed.
    Argued before LEWIS, BRADLEY, WARD, and DAVY, JJ.
    B. F. Dake, for appellant.
    Charles A. Pooley, for respondent.
   LEWIS, J.

The order requiring the Gould Coupler Company and its officers to appear before a referee with its books, and submit to an examination, was made .upon the affidavit of Mr. Benjamin J. Walker, setting forth that a written contract was entered into between the two companies named in the above title, on the 26th day of January, 1891, by the terms of which contract the Erie Company granted the Gould Company the right to use all the processes which the Erie Company was using, or might thereafter use, in the manufacture of malleable iron, and furnish the services of Mr. Walker to superintend the construction of a malleable iron plant, which was to be erected by the Gould Company, and to furnish to said Gould Company all patterns for furnaces, plates, etc., required in said construction; in consideration whereof, the Gould Company agreed to pay, in quarter-yearly payments, to said Erie Company certain royalties mentioned and provided for in said contract, for the use of the processes mentioned, upon all the material which the Gould Company should manufacture and ship, after the completion of the plant. It was further stated in said affidavit that the plant was constructed and completed under the supervision of Mr. Walker, and that the Gould Company had manufactured and shipped, under said contract, large quantities of such material, amounting to many thousand tons, and that, although the said Erie Company had in all respects performed the agreement upon its part, the Gould Company had neglected and refused to furnish to the Erie Company statements of the tonnage of metal produced, manufactured and shipped within the terms of said contract, and had failed and refused to pay the royalties, or any part thereof, and is indebted to the Erie Company for the amount of said royalties; that the Erie Company was about to commence an action against the Gould Company to recover said royalties, but was ignorant of the amount of material which had been manufactured under the contract, and had no means of obtaining the facts, but from the examination of said compan)' and of its officers, whom it was alleged had the desired information, but had repeatedly refused to furnish it to the Erie Company; and that such examination was desired in order to enable the Erie Company to frame its complaint, which would be for a sum of money only. The affidavit contained proper allegations as to the residence of the two companies and their officers. A motion was made by the Gould Company, at the Erie special term, to set aside said order. The motion was founded upon the affidavits of the president and the treasurer of the Gould Company, and upon the affidavit of Mr. Walker, upon which the original order was granted. This appeal was taken from an order denying the motion.

The affidavits of the president and treasurer contained allegations tending to show that the Erie Company had failed to perform the contract upon its part, and that the Gould Company had not used, to any extent, the processes mentioned in the contract. The contract referred to was made in the city of Buffalo, and the alleged cause of action arose in the state of New York. We are satisfied, after an examination of this case, and the authorities to which our attention has been called, that there is very little, if any, merit in the appeal. The facts present a case coming peculiarly within the provisions of sections 870-873 of the Code, which provide for such an examination of a person about to become a party to an action. While it is stated, in the affidavits of the officers of the Gould Company, that the Erie Company has failed to perform its contracts, and hence has no claim upon the Gould Company, that question should be litigated upon the trial of the action, and not upon the hearing of such a motion as this. The information sought is presumably within the exclusive knowledge of the Gould Company, and presumably is contained in its books. It was its duty to furnish to the Erie Company statements of the tonnage of metal produced, manufactured, and shipped under said contract. It is claimed by the appellant that an action in equity for an accounting might be instituted, and the facts set forth elicited upon the trial of such action. The respondent is not compelled to resort to that form of action. In order to intelligently frame a complaint in an action at law, it is entitled to the examination provided for by the order.

The order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.  