
    Charles Reed, Respondent, v. Charles Head Smith, Appellant.
    First Department,
    December 20, 1907.
    Deposition — examination before trial—affidavit by attorney
    A motion to examine a defendant before trial to prove that he wrote letters and sent telegrams containing fraudulent representations whereby the plaintiff was induced to purchase stocks, may he granted on the affidavit of the plaintiff’s attorney when the plaintiff is a non-resident, and the affidavit shows that the facts are within the attorney's knowledge, and that the defendant’s testimony will be materialpmd necessary for use at trial.
    Appeal by the defendant, Charles Head Smith, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 1st day of July, 1907, denying the defendant’s motion to vacate ah order for his examination before trial.
    
      Samuel S. Slater, for the appellant.
    
      John S. Wise, Jr., and Henry A. Wise, for the respondent. ,
   Ingraham, J.:

The action is brought to recover the • sum of $3,000 paid to the defendant for certain shares of stock off a corporation which it is alleged plaintiff was induced to purchase by and through false and fraudulent representations made to him by the defendant with intent to deceive, cheat and defraud; that the representations made to the plaintiff are in writing in letters and telegrams which purport to be from the defendant, and the plaintiff desirés to. examine the defendant to prove the writing of these letters and the sending of the telegrams. It is apparent that this evidence is most material and is necessary for the plaintiff upon the trial of the .action, and the fact as to whether the defendant wrote the letters and sent the telegrams can be proved by the defendant. Every fact required by section 872 of the Code of Civil Procedure appears. The materiality Of the defendant’s letters and telegrams' as proof upon the trial to prove the representations must be conceded, and the fact that the defendant would testify as to his handwriting and whether he wrote and sent the letters and telegrams can certainly be inferred:

The only question presented is whether the order should have been granted upon the affidavit of plaintiff’s attorney or whether it required an affidavit of the plaintiff personally. In the affidavit the plaintiff’s attorney, who was to try the case and had charge of its preparation, deposes that the plaintiff must prove the representations made by the defendant’s letters., He certainly is presumed to have knowledge of the proof required to prove the plaintiff’s case, and that fact being established, the other conclusions that the testimony of defendant as to whether or not he wrote these lettérs and sent the telegrams will be material upon the trial. The reason given for the affidavit not being made personally by the plaintiff is stated to be the fact that he resides in the State of Tennessee and is not within the State of Hew York. . I think, that is a sufficient excuse for the making of the affidavit by the attorney and counsel who was to try the case and necessarily had knowledge of the proof required. It is a mere useless formality in such a case to require the client, who cannot have the knowledge that his counsel, has as to the facts that are necessary to prove and as to. the nature of the proof necessary to sustain plaintiff’s case, to make an affidavit. There certainly can be no doubt from the facts sworn to by the plaintiff’s attorney — facts which necessarily are within his knowledge— that the defendant’s testimony will be most material and necessary to be used upon the trial of the action, and I think the affidavit fairly shows that the examination is sought to obtain a deposition for use upon the trial. (See Goldmark v. U. S. Electro-Galvanizing Company, 111 App. Div. 526 ; McKeand v. Locke, 115 id. 174; Grant v. Greene, 118 id. 850.)

The examination of the defendant should, however, be confined •to the letters and telegrams sent by the defendant, and the order is modified so as to so limit such examination and as so modified affirmed, without costs.

Patterson, P. J., Clarke, Scott and Lambert, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.  