
    Chester C. Burritt, Appellant, v. Koster, Bial & Co., Respondent.
    (New York Common Pleas—General Term,
    February, 1894.)
    An examination of a defendant before trial will not be allowed for the purpose of ascertaining whether the plaintiff has a cause of action.
    Plaintiff entered the premises of the defendant and attempted to serve a subpoena upon one of its waiters, when he was ejected by two persons who appeared to be waiters. Held, that an order for the examination of defendant’s president for the purpose of ascertaining the names and addresses of such persons should not be granted.
    Appeal from order denying motion for the examination of defendant’s president before trial.
    Action to recover damages for an assault alleged to have been committed upon the plaintiff by the defendant.
    Plaintiff, who was an attorney’s clerk, went to the defendant’s music hall and attempted to serve a subpoena on a waiter' there employed, when he was seized by two persons dressed as, and appearing to be waiters or ushers therein, and ejected from the hall. The examination was sought for the purpose of ascertaining the names and places of residence of such persons, with a view of proving that they were defendant’s employees.
    The following is the opinion of the court below:
    
      Bisohoef, J. The purport of the order is plainly to enable plaintiff to ascertain whether or not the persons alleged to have assaulted him were defendant’s employees, and so, whether he has a cause of action against defendant.
    Besides, it does not appear that the defendant or its president have1 any knowledge of the alleged assault, or of the identity of the persons alleged to have committed it. At most, therefore, the examination would elicit hearsay testimony, which is incompetent and unavailable for any purpose.
    The order should be vacated, with costs to defendant to abide the event of the action.
    
      George M. Pmney, Jr., for appellant.
    
      Fromme Brothers, for respondent.
   Per Curiam.

We suspended the decision to which we inclined on the argument, that we might consider the authorities to which counsel for the appellant earnestly entreated our attention.

We have examined those authorities and we find them of no effect in modifying our impression of the propriety of the order in question. The decision of the learned judge at Special Term is firmly supported hy the reasons upon which he grounds it, and is vindicated by conclusive authority. Britton v. MacDonald, 3 Misc. Rep. 514.

While we have every disposition to assist the appellant in his declared purpose of protecting the process of the court, we cannot disregard the settled rules of law even in the pursuit of so laudable an object.

Order affirmed, with costs.

Present: Daly, Oh. J., Bookstaver and Pryor,. JJ.

Order affirmed, with costs.  