
    In the Matter of the Application of James A. Thompson, as Ancillary Executor in the State of New York, of the Estate of William Thompson, Deceased, Respondent, for an Order for the Examination of the New York Pie Baking Company, Appellant.
    
      Production of the boohs of a corporation under subdivision 7 of section 872 of the Code of Civil Procedure — it is only to enable a witness to testify from, them, not to obtain an inspection of them — an inspection should be obtained under sections 8Ó3-809.
    Subdivision 7 of section 872 of the Code of Civil Procedure, relating to the examination and inspection of the books of a corporation, authorizes the production of such books only as an incident to and in connection with the examination of a witness who is able to testify from such books.
    The subdivision does not authorize the production of the books of a corporation on an examination of the president thereof, where the president of the corporation knows nothing of the facts involved in the action and the real purpose of his examination is to obtain an inspection of the books of the corporation.
    In order to accomplish such, purpose the moving party must proceed under sections 803-809 of the Code of Civil Procedure.
    Appeal by the New York Pie Baking Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of May, 1904, denying the appellant’s motion to vacate an order theretofor obtained by the petitioner for the examination of the said company.
    
      
      John Burlinson Coleman, for the appellant.
    
      Vincent P. Donihee, for the respondent.
   O’Brien, J.:

The real object of the examination is to obtain an inspection of the books of the company, although in form the application is to examine its president. We say “in form” because the examination of the president is a mere incident to what is really sought, namely, an inspection of the books.

This is reversing the order of things and such practice is not sanctioned by any of the provisions of the Code of Civil Procedure. Subdivision 7 of section 872 of the Code of Civil Procedure, which relates to the examination and inspection of the books of a corporation, is authority only for their production in connection with the examination of a witness who is able to testify from them. A proceeding for the discovery of books and papers under sections-803-809 of the Code of Civil Procedure is entirely distinct.

Where it is shown that an examination of a witness is “ material and necessary,” and that, in order that he may supplement his knowledge, books are essential, it is competent to require him on the examination to have the books for the 'purpose of furnishing such data or information as he may not be able personally to supply. The books are thus used merely as an incident to and in connection with the oral examination of the witness who can testify from them, and their production under such circumstances is not for the purpose of allowing an inspection and examination of them by the adverse party. In Press Publishing Co. v. Star Co. (33 App. Div. 243) it was said: “ Its object is that if a reference to the books, becomes necessary during the examination either to corroborate or contradict a witness or to make the proof preliminary to the introduction of the books in evidence upon the trial, such proof may be-made and the books may be referred to for that purpose.” Similarly in Mauthey v. Wyoming County Co-Op. Fire Ins. Co. (76 App. Div. 581) it was said: “ When the party sought to be examined is a corporation, its books and papers may be directed to be produced as subsidiary to the oral examination. This does not,. however, permit an inspection or examination of the books and papers of the-defendant as is permissible under the other procedure referred to. "" * * The primary purpose of the proceeding is the oral examination * * *. In order, however, that it may not be rendered "fruitless * * * the books * * * are required to be pro•duoed as an adjunct of the oral examination.”

To entitle - the applicant to the examination of the company’s •president, therefore, he should make it appear that the- examination ■of, the person sought to be examined is material and necessary. (Leary v. Rice, 15 App. Div. 397.) It does hot so appear, but, on "the contrary, it is shown that the person sought to be examined was not, at the time when the transactions involved in the suit are alleged ;to have occurred, connected with the company, and he could .not, therefore, have any personal knowledge of such transactions. The -question thus resolves itself into whether a plaintiff who states that he intends to begin an action and serve a summons, can, by moving for the examination of a defendant’s president, who knows nothing -of the facts involved, under the guise of such an examination, -obtain an inspection of the defendant’s books.

As pointed out, sections 870-873 of the Code of Civil Procedure provide for the examination of a party or a witness whose testimony is material and necessary ” and if the party sought to be examined is a -corporation, for compelling the witness to bring the books and papers which may be required, in connection with his oral examination • to make it complete; and if what is sought is only an inspection of-the books and papers, the applicant should move and bring himself within ¡sections 803-809 of the Code of Civil Procedure. The applicant, ¡therefore, proceeded under the wrong sections, of the Code of Civil Procedure, and the motion to vacate the order for the examination ■¡should have been granted.

The order appealed, from is accordingly reversed, with ten dollars •costs and disbursements, and the motion to vacate the order for the ■examination of the company’s president granted, with ten dollars--costs.

Van Brunt, P. J., McLaughlin, Hatch and Laughlin, JJ., concurred.

Order reversed, with -ten dollars costs and disbursements, and motion granted, with ten dollars costs."  