White v. Wilson — 72 N.Y. St. Rep. 664

Majority

p. 664

John H. White, Resp’t, v. Francis Wilson, App’lt.

(Supreme Court, Appellate Division, First Department,

Filed February 7, 1896.)

Headnote

Deposition—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 Qf representations given by him of the rival versions of lis assignor’s librettos. hr-' . • *. it. • *.

Appeal from an order, denying a motion to vacate an order for examination before trial.

W. D. Leonard, for app’lt; W. F. Severance, for resp’t.

—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 defendant, of course, knows just when and where the productions in question were given. If the plaintiff is right in his general contention, he will be entitled to the specific sum of $50 per week for every week during which the defendant produces 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.