Charles P. Hill, Appellant, v. John McKane and Edward Bowes, Respondents, Impleaded with Paul Gaston, Defendant

Charles P. Hill, Appellant, v. John McKane and Edward Bowes, Respondents, Impleaded with Paul Gaston, Defendant. First Department, November 23, 1906. Examination before trial to frame complaint granted. In an action against defendants for refusing to assign certain mining claims, the plaintiff is entitled to examine the defendant in order to frame his complaint. It is no answer to say that the plaintiff should first frame his allegations either for fraud, conversion or on contract, or for an accounting, as there is a right to an examination before the pleadings are framed. An order for such examination should not be set aside because the plaintiff had sued for an accounting in a foreign tribunal, which action had been futile. Appeal by the plaintiff, Charles P. Hill, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day. of July, 1906, granting the respondents’ motion to vacate as to them an order for the examination of defendants before trial. Archibald E. Watson, for the appellant. John M. Stearns, for the respondents. [MAJORITY — Houghton, J.:] Houghton, J.: Under the rule laid down by this court in Goldmark v. U. S. Electro-Galvanizing Co. (111 App. Div. 526) and emphasized in McKeand v. Locke (115 id. 174), the order for the examination o‘f defendant McKane should not have been set aside.. • It is manifest from the record that the plaintiff has a cause of action of some kind against the defendant McKane. The plaintiff paid to him $500, for which he himself assigned and agreed to obtain from his co-owners a like assignment to the plaintiff of a oneeiglith interest in certain mining claims which subsequently proved to be of great value. This interest has not' been transferred to plaintiff nor has any reason been given why it has not been done. The plaintiff should have an opportunity to examine the defendant McKane as to the facts to enable him to frame his complaint. It was no answer to plaintiff’s application to say that the plaintiff . should first frame his allegations either in fraud or in conversion, or on contract,'or for an accounting. The Code of Civil Procedure gives.the party a right to examine his adversary, or expected adversary, before the pleadings are framed. (Code Civ. Proc. §§ 870, 872, 873.) Hor was it any reason for the setting aside of the order for examination that the plaintiff had been oble to frame a complaint in an action for an accounting in the State of California. That proceeding had been futile and was terminated. The reasons for the examination of McKane do not apply to the other defendants, who stand in quite a different position. The order appealed from should be reversed as to the defendant McKane, and the order for his examination reinstated and affirmed as to the defendant Bowes, without costs of appeal to either party. Ingraham, McLaughlin, Clarke and Scott, JJ., concurred. Order reversed, as to defendant McKane, and order for his examination reinstated and affirmed as to other defendants, without costs of appeal to either party. Order filed.