Savage v. Neely — 75 N.Y. St. Rep. 346

Majority

p. 346

Richard H. Savage v. Frank I. Neely.

(Supreme Court, Appellate Division, First Department,

July 31, 1896.)

Headnote

1. Examination of party beforr trial—Affidavit.

An affidavit of the examination before trial of defendant in an action for an accounting as to books sold by defendant under a royalty contract is sufficient where il states that defendant’s testimony is material and necessary; that plaintiff expects to prove the number of books printed, the number sold, to whom sold, the amounts received therefor, the number of books on hand, and the amount of all charges against defendant, and the nature of the same; and that such facts are within the knowledge of defendant, but not within the knowledge of plaintiff; and that the testimony of defendant is taken for the purpose of being read on the trial of the action.

3. Same—Subpoena duces tecum.

Though plaintiff, on'an application for the examination of defendant before trial, can not have a discovery of books and papers, he may have a subpoena duces tecum to compel defendant to bring his books and papi rs, in order that plaintiff may, on the examination of defendant, prove any entry tending to substantiate his case.

Appeal from special teian, New York county.

Action by Richard Savage against Frank Tennyson Neely for an accounting, and for an adjudication that a certain agreement is null and void. From an order Amcating an order for the examination of defendant before trial and a subpoena duces tecum plaintiff appeals.

C. Bainbridge Smith for appellant.

Burnett Stayton & Hagen for respondent.

The plaintiff is an author and the defendant a publisher. They entered into an agree nent Avhereby the defendant was to publish and to pay the plaintiff a specified royalty upon the books sold. The plaintiff, in his complaint, asks for an account of all the books sold by the defendant under this contract. In such an actio", upon proper papers, the right to an examination before trial is almost a matter of course. The plaintiff here states that the defendant’s testimony is material and necessary for the prosecution of the action; that he expects to pro've by the examination “the number of books printed; the number1 of books sold, to whom sold, and the amounts reeeÍAred therefor; the number of books on hand, and the number of damaged books returned; and the amount of all charges and claims against the plaintiff, and the nature of the same.” He also avers that the facts Avhicli he thus expects to prove are £Svithin the knoAA'ledge of the defendant, but are not within the knowledge of the plaintiff, and the testimony of the said defendant is taken for the purpose of being read by.

p. 347

and on the part of the plaintiff on the trial of this action.” This was amply sufficient to entitle the plaintiff to an order for the exa minion of the defendant before trial. As to the subpoena duces tecum, it is sufficient to say that, while the plaintiff can not, in this proceeding, have a discovery of b xilcs and papers, lie may, upon the examination of the defendant, prove any entry or paper tending to substantiate his claim. To effectuate this, a subpoena dittoes tecum is appropriate. The use which may be made of such books and papers upon the examination is stated in Horst v. D. G. Yuengling Brewing Co., 1 App. Div. 629 .

The order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate the order for the examination of the defendant, and the subpoena duces tecum, denied, with $10 costs; and a day will be fixed in the order for the examination.