
    Edmund Plohn, Respondent, v. The Columbia Amusement Company and Rud K. Hynicka, Defendants, Gus Hill, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Depositions — depositions on commission — when allowed — order for commission—■ examination of witness.
    An order for the examination of defendant before trial may be granted though the testimony sought to be elicited can be obtained from other sources.
    A plaintiff is entitled to an order for the examination of defendant before trial to elicit facts which,' though denied by the answer, the plaintiff is bound to prove in the first instance in order to make out his cause of action.
    Appeal from an order of the City- Court of the city of ¡New York denying a motion to vacate an order for the examination before trial of the defendant Hill.
    Leon Laski, for appellant.
    Joseph Sapinsky (Alvin T. Sapinsky, of counesl), for respondent.
   Gerard, J.

Plaintiff, in his complaint, alleges that he was employed by defendants to procure for them a building for theatrical purposes and sues for the value of his services. He obtained an order for the examination of the defendant Gus Hill, who moved to vacate the order and who now appeals from the order which denied his motion. The appellant claims that the order for his examination should have been vacated on two grounds: First, because defendant has denied in his answer the facts which plaintiff seeks to elicit from him on his examination, citing Vogel v. Backer Construction Co., 148 App. Div. 639. In that case the action was brought to foreclose a mechanic’s lien for work and services performed and materials furnished in the installation of an automatic sprinkler system. The answer there denied the performance of the contract by the plaintiff and set up two counterclaims for damages, and in the affidavit, upon which the order for examination of defendant was granted in that case, it was stated that the examination was material and necessary to enable plaintiff to properly prepare for the trial of the action, for the reason, in substance, that two counterclaims were set up and that the examination was desired for the purpose of. avoiding and properly defending those two counterclaims. Of course, one party cannot pry into a case of the other party or have a cross examination before trial of the other party as to matters which that other party is compelled to prove at the trial as part of his affirmative case or counterclaim, but I do not think that that case, or the other cases cited by appellant, hold that a plaintiff cannot have an examination before trial of the defendant concerning allegations "in the complaint which the plaintiff is bound to prove in the first instance in order to make out his cause of action.

See Kornblath v. Isaacs, decided by Mr. Justice Lehman in a carefully considered action; that case being affirmed by the. Appellate Division in 133 N. Y. Supp. 737, on the opinion of Mr. Justice Lehman.

The second point advanced by appellant is that the testimony sought to be elicited can be obtained» from other sources, but in order to sustain this contention he cites • cases either distinguishable from the one at bar or which have since been overruled by the decision of the Appellate Division in Goldmark v. United States Electro-Galvanizing Co., 111 App. Div. 526.

The order appealed from should he affirmed with ten dollars costs and disbursements.

Seabuby and Guy, JJ., concur.

Order affirmed, with ten dollars costs and disbursements.  