
    Charles F. Wood, Respondent, v. The J. L. Mott Iron Works, Appellant.
    First Department,
    June 15, 1906.
    Deposition — examination of officers of corporation before trial — when order compelling production of books improper—practice.
    When the main question at issue in an action against a corporation is as to the authority of an employee to make a contract on its behalf, an examination of the officers as to the authority of the employee is proper if the moving affidavit complies with section 872 of the Code of Civil Procedure.
    But when the moving affidavit does not show that the books and minutes of the corporation contain entries conferring any power to contract on such employee, the production of the books and minutes should not be ordered.
    
      It seems, that should the necessity for the production of such books appear on the hearing, the .court can adjourn the examination and order the production of the books at the adjourned session.
    Appeal by the defendant, The J. L. Mott Iron Works, from an order of the Supreme Court, made at the Hew York Special Term bearing date the 1st day of March, 1906, and entered in the office of the clerk of the county of Rew York, denying a motion to vacate a former order directing the examination before trial of certain officers of the defendant coloration.
    
      John J. Gleason, for the appellant.
    
      Perry D. Trafford, for the respondent.
   Ingraham, J.:

The order which the defendant sought to have vacated required the president, secretary and treasurer of the defendant corporation to be examined and their depositions taken pursuant to section 873 of the Code, of Civil Procedure, and directed them to produce on such examination at the time and place specified certain books of the corporation. The main question at issue in this action is as to the authority of an employee of the defendant to make a contract on its behalf with the plaintiff. It is evident that an examination of the officers of the defendant is material and necessary to show the authority of the person who undertook to act for the defendant in making the contract with the plaintiff. The affidavit submitted complied with section 872 of the Code and the plaintiff was entitled to the order for fhe examination of the officers of the defendant.

Subdivision 7 of section 872 of the Code of Civil Procedure provides that if the party sought to be examined is a corporation the affidavit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, or the books and papers as to the contents of which an examination or inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers.” , .

The order required the officers of the corporation to be examined t) produce on such examination the by-laws and minute books of the board of directors and of the meetings of the stockholders of said J. L. Mott Iron Works, and all other papers and records, including record books showing the actions and regulations of the officers of the defendant in regard to the reception and examination of plans and specifications, the making of estimates and the making of proposals. I can find nothing in the affidavit which justifies this provision. It certainly will not be required ,on this examination to produce all of these records and books of this corporation to determine the question as to the authority of the particular individual to make a contract on behalf of the defendant. It is not alleged that there is any entry in any of these books which conferred any authority upon the person making the contract to act for the defendant ; and to justify such an order there must be some fact alleged in the affidavit which shows that the presence of the books on the examination will be necessary. In this respect I think the affidavit upon which this order was granted was insufficient. The examina.tion is to be', before the court, and if it should appear that the production of any particular book or paper is necessaiy, the court can adjourn the examination and order the production of such book or-.paper at the adjourned session. But so far as appears from the affidavit upon which the order was granted, there is nothing to justify the provision requiring the corporation to produce upon the examination its general records, books and documents.

My conclusion, therefore, is that the order appealed from should be modified by striking out the second clause which provides for the production of the hooks and papers of the defendant, and as modified affirmed, without costs.

O’Bbien, P. J., Patteeson, Laughlin and Clabice, JJ., concurred.

■ Order modified as directed, and as modified affirmed, without costs.  