
    Alexander F. Slaughter, Respondent, v. Bernard Turkel and Moritz Felstiner, Copartners, Doing Business under the Firm Name and Style of Turkel & Felstiner, Appellants.
    First Department,
    October 20, 1911.
    Discovery — examination before trial — suit for accounting.
    A plaintiff suing in equity for an accounting is only entitled to examine the defendant before trial as to such facts as are material and necessary to be proved in order to entitle him to an interlocutory judgment for an accounting. . '
    Appeal by the defendants, Bernard Turkel and another, copartners, etc., 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 25th day of May, 1911, denying the defendants’ motion to vacate an order, for - the examination of the defendant Felstiner before trial.
    
      Abraham I. Spiro of counsel [Spiro & Wasservogel, attorneys], for the appellants.
    
      George H. Francoeur of counsel [Warren Leslie, attorney], for the respondent.
   Clarke, J.:

The complaint is framed in, equity, and the relief demanded is an accounting. This court has repeatedly held that in ah action for an accounting the only examination to which the plaintiff is entitled before trial is as to such facts as are material and necessary to be proved to entitle him to an interlocutory judgment. He may not have an accounting until he has first established that he is entitled to it.

The order appealed from should be reversed, with ten- dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.

Ingraham, P. J., McLaughlin,■ Laughlin and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate granted, with ten dollars costs.  