
    ST. CLAIR, PAPER MANUF’G CO. v. BROWN et al.
    (Supreme Court, Appellate Division, First Department.
    April 9, 1897.)
    Discovery—Examination of Party before Trial.
    The affidavit need not expressly allege that the proposed deposition is to he used on the trial, as such averment is not required either by the statute or the rule of court (Code Civ. Proe. § 872, subd. 4; Gen. Rule Prac. 82), but it is sufficient if an inference to that effect is necessarily to be drawn from the facts alleged.
    Van Brunt, P. J., dissenting.
    Appeal from special term, New York county.
    Action by the St. Clair Paper Manufacturing Company against Clarence H. Brown and another' to recover goods sold by plaintiff to defendants, and damages for the detention thereof. From ah order denying a motion to vacate an order for the examination of defendants before trial, defendants appeal. Affirmed.
    Argued before VAN BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON, and PARKER, JJ.
    Franklin Bien, for appellants.
    Charles D. Ridgway, for respondent.
   PARKER, J.

The appellants urge that there must be a reversal, because the plaintiff’s moving affidavit, for an order for the examination of the defendants, contains no allegation “that the plaintiff intends to use the proposed deposition of the defendants upon the trial of this action.” It is true that the allegation in so many words cannot be found in the papers, nor, indeed, any other statement in which the affiant asserts in express terms that it was the plaintiff’s intention to read the testimony upon the trial. If it were needful, therefore, that the plaintiff should have an explicit statement to such effect, then the appellants are right. But neither the statute nor the rule of the court contains any such exaction. The Code provides that the affidavit shall set forth “the name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application.” Code, § 872, subd. 4. And the rule of the court is that “the affidavit shall specify the facts and circumstances which show, in conformity with subdivision 4 of section 872, that the examination of the person is material and necessary.” Rule 82. The purpose of both the statute and the rule is protection to the party to be examined, rather than obstruction to the moving party. It looks to the substance rather than to the form. That result is accomplished when it may be fairly inferred from all the statements of the moving party that he intends to produce the evidence which he seeks to obtain, as a part of the proof of his case, upon the trial; and when such inference is necessarily' drawn from the facts alleged, and the statements made, the legal effect is the same as where the party states in so many words that he intends to read the testimony upon the trial. Green v. Railroad Co., 10 Misc. Rep. 473, 32 N. Y. Supp. 177, affirmed 90 Hun, 607, 35 N. Y. Supp. 1107; Fogg v. Fisk, 30 Hun, 61; Ball v. Publishing Co., 12 Civ. Proc. R. 4.

It will require but a brief reference to the statements contained in the plaintiff’s moving affidavit to make it appear that the learned justice who passed upon this question at special term was fully justified in holding that the inference was required that it was the intention of the moving party to use upon the trial the testimony which it seeks to obtain from the defendants. Prior to the 16th day of April, 1896, the plaintiff received, at its office in the city of Detroit, an order signed, “Susquehanna Paper Manufacturing Company,” for 31,000 pounds of wrapping paper, to be paid for in 10 days. Supposing that the order was from the Susquehanna WaterPower & Paper Company, the order was promptly filled. At the expiration of the 10 days, the plaintiff drew its draft upon the Susquehanna Paper Manufacturing Company, but it was not paid. About that time the plaintiff learned that the Susquehanna Paper Manufacturing Company was not a corporation, as it had supposed, but that the defendants were doing business under that name, and were insolvent. The vice president and treasurer of the plaintiff vailed at the office purporting to be the office of the Susquehanna Paper Manufacturing Company, and found the defendant Walker in charge. Walker insisted that Clarence H. Brown was the owner of the business carried on in the name of the company, and that he resided in Brooklyn, but where he refused to say. He gave to plaintiff’s vice president, however, a written statement reading as follows:

“Susquehanna Paper Mfg. Co., 102 and 104 Fulton St.
“New York, May 27, ’96.
“St. Clair Paper Mfg. Co., Detroit: In compliance with your request, we desire to state that the Susquehanna Paper Manufacturing Company was organized by Clarence H. Brown, who is the owner of the business carried on in the name of the company. Mr. Brown, in. addition to this business, is engaged in several other enterprises, and is a large owner of real estate in the cities of Brooklyn and New York, to the extent of about $50,000. I think this will meet the requirements you desire to have the information of.
“Yours, truly, Susquehanna Paper Mfg. Co.,
“Smith.”

Diligent search in Brooklyn failed to disclose the residence or whereabouts of a person bearing the name of Clarence H. Brown. The plaintiff thereupon, and about the 27th day of May, notified the defendants that it canceled the contract of sale, and disaffirmed the same, and demanded the return of the goods then in the defendants’ possession and control, which request the defendants refused. Thereupon the plaintiff commenced this action for the recovery or possession of the goods, and damages for their detention, the complaint denying that Brown & Walker were partners, doing business in the name of the Susquehanna Paper Manufacturing Company. From the affidavits presented by the plaintiff on the application for the order, it appears that Walker refused to admit that he is a partner of Brown in the business, but, on the contrary, denied it, asserting that he had no interest whatever in the goods replevied, otherwise than as a manager for Brown. The affidavit concludes as follows:

“That plaintiff does not know whether there is such a person as the defendant Clarence H. Brown; that it does not know where said Brown now is, nor where he can be found, nor what his relations were or are with the Susquehanna Paper Manufacturing Company, or with said Walker; neither does it know what the relations of said Walker are or were to the said company, or what his authority to act for said Brown was or is, nor whether the statement above set out and delivered to deponent by said Walker was actually signed by said Brown, as stated by said Walker, so as to be at the time of its delivery to deponent. That, if plaintiff waits until the trial of this case, it cannot prove its case, because it cannot procure the attendance of said Brown, and prove by him the true relation between him and the defendant Walker in the conduct of the business carried on under the name of the Susquehanna Paper Manufacturing Company, and the said defendant Walker may leave the jurisdiction of the court at the time of the trial, and thus make it impossible to prove the allegation of co-partnership between the said defendants, as alleged in the complaint, nor any of the facts showing the relation of said Walker or of said Brown to the said company or to each other; that plaintiff makes this application in good faith, and cannot at the present time prove facts except by the testimony of the said defendants Brown and Walker.”

In another portion of the affidavit, the affiant states:

“That the testimony of said defendants, Clarence H. Brown and Frank K. Walker, is material and necessary, for the plaintiff and for the prosecution by the plaintiff of this action.”

And again, after presenting with clearness the points upon which one or both of said defendants must be necessary and material witnesses for the plaintiff, the affidavit closes with the statement supra, that the plaintiff maltes this application in good faith, and cannot at the present time prove facts except by the testimony of the said defendants Brown and Walker.

Assuming, as we must, that the uncontradicted statements in the affidavit are true, the inference must of necessity be drawn that the plaintiff’s purpose in securing the testimony of the defendants is to enable it to prove its case upon the trial. Indeed, there is no opportunity’' whatever for a contrary inference.

The order should be affirmed, with $10 costs and printing disbursements.

RUMSEY, WILLIAMS, and PATTERSON, JJ., concur.

VAN BRUNT, P. J.

I dissent. The conclusion arrived at in the case is not in harmony with the previous decisions of this court..  