
    Axel Hirschsprung, App’lt, v. Carsten Boe, Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed February 25, 1887.)
    
    Practice—Examination before triar.
    A party will not be permitted to examine his opponent before trial to find out what he is going to prove “ in order to prepare to rebut any such evidence if offered at the trial.”
    Appeal from an order vacating an order for the examination of the defendant before trial.
    
      Ullo, Ruebsamen and Hubbe, for app’lt; George H. Foster, for resp’t.
   Hyatt, J.

The plaintiff’s cause of action appears to be based upon the allegations that on October 31, 1884, he paid to the defendant $500, which he directed the defendant to invest in the purchase of and sale of petroleum; that shortly afterwards the defendant informed him that the transaction had resulted in a profit of seventy-five dollars, and that about a week after that time defendant reported to him the loss of fifty dollars; that immediately thereafter he instructed the defendant not to enter into any other transactions and demanded payment of $525.

The affidavit on which the order for the examination was based appears to be insufficient to sustain it, in that it nowhere states that the testimony of the defendant is material or necessary to enable the plaintiff to prove his case.

It frankly and positively states that the desire of the plaintiff is to find out what the defendant is going to prove as his defense “in order to prepare to rebut any such evidence if offered at the trial herein ”

This is not permitted by the authorities Fourth National Bank, N. Y. City, v. Boynton, 29 Hun, 441.

It does not appear that the defendant’s examination before trial is necessary to make out his case, but on the contrary it is clear that the purpose of the plaintiff was to discover the testimony which the defendant could give in support of his defense. The order was properly vacated.

Order appealed from affirmed, with costs.

McAdam, Ch. J., and Nehbras, J., concur.  