We think the affidavit upon which the order for the examination of this defendant was granted was sufficient to justify the order and that the court below properly refused to vacate it. The fact upon which the plaintiff’s cause of action depends is that $3,000,000 of the stock of a corporation were originally issued to the defendants John D. Gould and Charles A. Hanson as a consideration for the purchase of certain patents then owned or controlled by John D. Gould and Charles A. Hanson, and that said patents did not exceed! in value the sum of $10,000. The plaintiff desires to examine the said Gould for the purpose of obtaining testimony to be used upon the trial to prove that fact. The plaintiff must prove, to sustain his cause of action, that this patent was worth much less than the amount of stock which was issued for it. The Code provides for such an examination before trial where it is evident that the testimony of the person sought to be examined will be material upon the trial. The plaintiff is not bound to wait until the trial, when the defendant can keep out of the way and avoid the service of a subpoena, but he is entitled to have the testimony taken before trial so that it can be available for use when the case is tried.
We think the affidavit was sufficient to justify the court in ordering the defendant to be examined as a witness and that the order appealed from should be affirmed, with ten dollars costs and disbursements.
McLaughlin and Hatch, JJ., concurred; Van Brunt, P, J., and Laughlin, J., dissented.