
    John Keenan, Resp’t, v. John O’Brien and Heman Clark, App’lts.
    
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 24, 1889.)
    
    Examination of party before trial—Production of books and papers —When order should not be granted.
    An order to examine defendant before trial and requiring the productian of books and papers should not be granted where the action is for a partnership accounting, and the signing of the paper, alleged as constituting the partnership, and refusal to accord plaintiff partnership rights, are both conceded.
    Appeal from order denying the motion to vacate an ■ex parte order for the examination of the defendant, Hernán Clark, and continuing that order.
    
      Leslie W. Russell and E. T. Lovatt, for app’lts.
    As the defendant could examine the plaintiff at the trial, it does not appear that it was essential that he should have his examination before trial. Jenkins v. Putnam, 106 N. Y., 272-276; 6 N. Y. State Rep., 425.
    It is sufficient to condemn the order in toto, even though the application is formally correct, where it also appears that the applicant wishes to find out what the opposite party will swear to, so that he can meet and overcome it. Chapin v. Thompson, 16 Hun, 53; Greer v. Allen, 15 id., 432, 437; Phœnix v. Dupuy, 7 Daly, 238; Weston v. Reich, 48 Hun, 320; 15 N. Y. State Rep., 823.
    The case of Herbage v. City of Utica (109 N. Y., 81; 14 N. Y. State Rep., 845) simply decided the question of power, and not of the mie upon which discretion should be •exercised. The courts will never take an accounting upon the trial itself,. but will determine first the liability, and then let the accounting go to its proper place, before a referee. Sanger v. Seymour, 42 Hun, 641; 4 N. Y. State Rep., 449; Dyett v. Seymour, 13 C. P. R., 127; 8 N. Y. State Rep., 429.
    The courts will not permit a person who is a confessed fugitive from justice to prosecute a litigation in the state for his own private convenience and benefit, with precisely the same standing and privilege for not only writs of right, but for discretionary orders, as those may who obediently and lawfully submit to the civil and criminal jurisdiction of the judiciary system of the state. Brinkley v. Brinkley, 47 N. Y., 41; People v. Genet, 59 id., 80, 82; McMonagle v. Conkey, 14 Hun, 326.
    Statutory and even constitutional rights may be waived by the conduct of a suitor. Van Hook v. Whitlock, 26 Wend., 49; Lee v. Tillottson, 24 id., 337.
    A person who is indicted for infringing the criminal law •of the state, who departs therefrom without waiting to abide the consequences of his act, is a fugitive from justice. Matter of Voorhees, 32 N. J. L., 141.
    The order was faulty because it made the production of the books and papers a part of the order for examination. Sections 803 et seq. of the Code of Civil Procedure point out a different method of obtaining books and papers. It is t e rule that an order for an examination cannot compel the production of books. Hauseman v. Sterling, 61 Barb., 347; Martin v. Spofford, 3 Abb. N. C., 125; DeBary v. Stanley, 5 Daly, 412.
    
      George Bliss, for resp’t.
    
      
       Reversing 20 N. Y. State Rep., 64.
    
   Van Brunt, P. J.

The compiamu in this action alleges that in April, 1885, the plaintiff and defendants duly made an agreement to form a copartnership in respect to certain contracts; that said copartnership business was entered upon and has ever since continued to be carried on by the plaintiff and defendants in pursuance of and under said agreement; that said copartnership has made large profits, whereof the plaintiff is entitled to one-sixth; that the defendants have exclusive possession of the books of said co-partnership and have not allowed the plaintiff access thereto; that the defendants have not made, and have refused to furnish to the plaintiff true statements of the receipts and expenditures of said copartnership, although requested so to do, and have refused and neglected to divide any money on hand over and above the amount required to pay the debts thereof at the time provided in said agreement, or at any time, and still so neglect and refuse, wherefore the plaintiff demands judgment that the copartnership be dissolved, and that an account be taken of all the dealings and transactions of the copartnership, and that the property be sold and the debts paid and the surplus divided between the plaintiff and the defendants according to their respective interest therein, and that in the meantime the defendants be enjoined, and a receiver appointed.

The answer of defendants denies all the allegations of the plaintiff except that they have not made any statement of the receipts and disbursements etc., and have not divided any money with the plaintiff or paid him any part thereof; and then sets up certain affirmative defenses.

The plaintiff applied for the examination of the defendant Clark, setting up the cause of action and defenses, and that the testimony of the defendant, Clark, and an examination of the books and papers was material and necessary for use upon the trial, to prove that a copartnership was formed and continued to exist and that the plaintiff is entitled to have the same dissolved because the defendants have done certain things, namely: that the defendants had and have exclusive possession of the books of the business, and have not allowed the plaintiff access thereto, and have applied to their own use large, sums of money belonging to the copartnership, and misappropriated large sums of money belonging to the copartnership.

Upon this affidavit, an order for the examination of Clark was granted and.a motion was made to set the same aside, which was denied, and from the order denying such motion this appeal is taken.

It appears from the_ papers that the agreement, under which the copartnership was claimed to have been formed, was in writing, and, therefore, it was not necessary to examine Clark upon that point. The facts relating to the agreement of copartnership were as well known to the plaintiff as to the defendant Clark, and the negotiations, whatever they were, having culminated in the agreement,, that necessarily established the relations of the parties, and it cannot be altered by paroi. It is true that it is alleged that the defendant, Clark, is in possession of one copy of the original paper by which the plaintiff alleges the copartnership was formed, but it is no„t alleged, so far as we have been able to find, that the plaintiff has not the other. It was, therefore, entirely unnecessary that the defendant should _be_ examined in-order to prove the paper by which the plaintiff alleges the copartnership was formed.

It appears, from the pleadings, that if the existence of the partnership under the alleged agreement is established then the terms and conditions thereof have been broken, and the plaintiff would be entitled, as a matter of right, to an accounting which would not be taken by the court, but by a referee, and the plaintiff would have ample opportunity, before such referee, to examine the defendants as to the application of money belonging to the partnership to their own use.

The court would not, under any circumstances, take the account between the parties, and all that could be tried in the first instance was as to whether the plaintiff was entitled to an account, and if the plaintiff establishes that fact by proving the copartnership, then as the defendants state that they have not made any statement to him of the receipts_ and expenditures, as required by the alleged copartnership agreement, the plaintiff would be entitled to • a decree in his favor for an accounting and a dissolution of the partnership.

It therefore appears upon the very face of the papers that an examination of the defendant is not necessary for the establishment of the plaintiff’s case in the first instance, and cannot, in any way, aid him in respect thereto, because the facts in reference to the establishment of the copartnership are as well known to the plaintiff as they are to the defendants, and, under such circumstances, an examination of the defendant, before trial, is not a proper exercise of the discretion of the court. Jenkins v. Putnam, 106 N. Y., 275.

For these reasons we are of opinion that no necessity whatever for examining the defendant before trial is set out in the papers in question, and the order should have been vacated.

The order appealed from is therefore reversed, with ten dollars costs and disbursements, and the order for the examination of the defendant before trial, vacated.

Macomber and Bartlett, JJ., concur.  