Opinion
April 8, 1910.
William B. Hornblower, for the appellants.
Abram J. Rose, for the respondent.
Action by a stockholder of a foreign corporation on behalf of himself and other stockholders similarly situated to restrain the appellants, as a reorganization committee, and others from acquiring the property and assets of the corporation and from carrying out a proposed plan for reorganization, and to have such plan declared illegal and void in fraud of their rights. After issue had been joined the plaintiff obtained an order for the examination of a witness residing at Chattanooga, Tenn., upon oral questions, and the appeal is from such order.
I am of the opinion that the order appealed from should be reversed. The subject-matter concerning which it is desired to examine the witness is in no way connected with or material to the issues involved in the action. Such examination can only be for an ulterior purpose, and for that reason the motion should have been denied. A commission will not issue to take the testimony of a witness in advance of the trial unless it is made to appear that such testimony is material to the issue to be tried. ( Wood v. Hoffman Co., 121 App. Div. 636; Gavin v. N.Y. Contracting Co., 122 id. 643; Ehrich v. Root, Id. 719; Oakes v. Star Co., 119 id. 358; Grant v. Greene, 118 id. 850; Potter v. Morning Journal Assn., 49 id. 242. See, also, Gen. Rules of Practice, rule 82.)
The examination is desired for the purpose of showing the breach of a contract on the part of the firm of Kean, Van Cortlandt Co. and the corporation in question to furnish certain moneys to it, which failure it is claimed was the cause of or resulted in the bankruptcy of the corporation; but the failure of such firm to perform the contract, if made, is in no way involved in the issues of this action, nor would evidence bearing on that subject be admissible at the trial. The court will not permit its process to be used in one action to enable a party to ascertain whether he may not have a cause of action or defense in a contemplated action.
The order so far as appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion for the examination of the witness referred to denied, with ten dollars costs.
INGRAHAM, P.J., CLARKE, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for examination denied as stated in opinion, with ten dollars costs.