White v. Wilson — 37 N.Y.S. 193

Majority

p. 193

WHITE v. WILSON.

(Supreme Court, Appellate Division, First Department.

February 7, 1896.)

Headnote

Discoveey—Examination before Trial.

In an action to recover royalties under a contract providing for a certain royalty for each week during which defendant should produce a certain libretto, defendant, on examination before trial, may be compelled to disclose the number of representations of the libretto given by him.

Appeal from special term, New York county.

Action by Joseph H. White against Francis Wilson to recover royalties on the productions by defendant of a libretto. From an order denying a motion to vacate an order for examination before trial, defendant appeals. Modified.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and INGRAHAM, JJ.

W. D. Leonard, for appellant.

W. F. Severance, for respondent.

The only point upon which the plaintiff really requires the testimony of the defendant is with regard to the number of representations given by the latter of the rival versions of his assignor’s librettos. The plaintiff cannot know the facts on. this head, nor has he the means of readily proving them. The défendant, of course, knows just when and where the productions in question were given. If the plaintiff is right in lys general contention, he will be entitled to the specific sum of $50 per week for-every week during which the defendant produced other adaptations of the pieces already adapted by plaintiff’s assignor under the contracts sued upon. The examination should, however, be limited to this one specific subject.

The order appealed from should be modified so far as to require the examination of the defendant upon the point indicated, and, as. modified, affirmed, without costs to either party.

INGRAHAM, J., taking no part.