
    L. Lawrence Weber, Appellant, v. Columbia Amusement Company, Respondent. (No. 1.)
    Deposition— examination before trial.
    
    Appeal from an order of the Supreme Court, entered in the Mew York county clerk’s office on the 1st day of Movember, 1912, denying a motion to vacate an order for the examination of plaintiff before trial.
   Per Curiam:

The action is to recover damages for breach of a contract to book certain attractions at a theatre owned and controlled by the plaintiff in the city of Schenectady for a period of five theatrical seasons, beginning with the season of 1910-1911. The answer, after denying the material allegations of the complaint, sets up by way of an affirmative defense that by paragraph 10 of the agreement the plaintiff and his assignor agreed that1 ‘ they will not directly or indirectly, during the period of this agreement, become interested in any theatre devoted to the giving of burlesque in the city of Schenectady, or directly or indirectly operate, manage, or conduct such theatre, nor will they directly or indirectly become interested in the booking of any burlesque company to be given ‘ ‘ in the city of Schenectady; that the plaintiff, in violation of said covenant, actually became interested in the booking of burlesque shows at the Van Curler Opera House in the city of Schenectady, and did actually book such shows, and that by reason of the said breach on the plaintiff’s part the defendant terminated the said agreement. The defendant, for the purpose of establishing said affirmative defense, made a motion for an order for the examination of the plaintiff before trial, which was granted. The motion papers establish the propriety of the relief required, but the order is too broad. It provides that the plaintiff be examined as an adverse party before trial with reference to matters contained-in the annexed affidavit, and generally with respect to the pleadings herein. It should be modified to limit the examination to the facts material and necessary to establish the affirmative defense set up, and as so modified affirmed, without costs to either party. Present— Ingraham, P. J., Laughlin, Clarke, Scott and Miller, JJ. Order modified as stated in opinion, and as modified affirmed, without costs. Order to be settled on notice.  