
    (63 Misc. Rep. 380.)
    WILSON et al. v. NEVINS.
    (Supreme Court, Special Term, New York County.
    May, 1909.)
    Discovery (§ 58)—Production of Books and Papers—Subpcena Duces Te-cum.
    Where an order for examination of a party before trial is granted, the issue of a subpoena duces tecum should not be allowed until, upon examination, it appears that the papers are necessary.
    [Ed. Note.—For other cases, see Discovery, Cent. Dig. § 72; Dec. Dig. § 58.]
    Action by James Wilson and others against Thomas A. Nevins. Motion to modify order for examination before trial.
    Granted in part.
    Steele, De Friese & Steele, for plaintiffs.
    Louis T. Noonan, for defendant.
    
      
      For other casos see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexer-
    
   GILDERSLEEVE, J.

The motion is to modify.an order for the examination of defendant before trial by vacating a subpcena duces tecum issued upon said order. The defendant was required to testify as to the furnishing of certain goods and performance of certain labor and concerning payments made by defendant for goods alleged to have been furnished to his wife. The subpoena duces tecum seems to be premature, as it does not appear that the various papers covered by the subpoena will be required to refresh the recollection of defendant to enable him to give testimony to which plaintiffs may be entitled.

It does not appear that the nature of the matters concerning which the defendant is to be examined or his general attitude toward the examination is such that it is reasonably certain that he will not or cannot answer the questions to be propounded to him, without reference to his books and papers, so that there is no reason here for departing from the rule that the issuance of a subpoena duces tecum should await until it appeárs on the examination that the papers are, necessary to enable the party to testify.

Motion, to the extent above indicated, granted. No costs.

Ordered accordingly.  