' This action is brought to recover from the defendant upon an allegation that the plaintiff rendered work, labor and" services for defendant and gave’defendant the'use and occupation of plaintiff’s office and office- appurtenances, and of plaintiff’s office force, all of which was of the reasonable value of $25,000, which defendant agreed to pay. . There is no statement in the complaint of the nature-of plaintiff’s services, of the use that the defendant" made of the plaintiff’s office, office appurtenances and office force, and the answer is a general denial. After issue joined the plaintiff made an application to examine the defendant before trial, and, in the affidavit upon which an order for such examination was granted, alleges that the “services were advice with respect to certain mining properties owned or controlled by the defendant; and with respect to the formation of a company to take over these'properties' and the disposal of the stock of this company; ” that in consequence of the plaintiff’s advice a corporation was organized, of which the plaintiff acted as one of the first directors and was elected treasurer, and that plaintiff subsequently advised the defendant with regard to the sale and disposition of the stock of the company, and arranged with a person named to purchase the stock of the' corn-pan"", which he did. The affidavit further states that the plaintiff, was informed that the defendant was enabled to sell the property for a large price; that this was done without plaintiff’s knowledge ; *721and the testimony that plaintiff .desires to obtain from the defendant is the profits derived by the defendant in his future disposition of the stock of this company. The affidavit then states : “ A necessary element of my proof upon the trial will be to show the profits derived by the defendant, for this evidence will be a material element to enable the jury to fix the value of the services which I have rendered.”
By subdivision 4 of section 872 of the Code of Civil Procedure a person desiring to take a deposition may present to a judge of the court in which the action is pending an affidavit stating the name and residence of the person to be examined, and that the testimony of such pe'rson is material and necessary for the party making such application or the prosecution or defense of such action. To justify the order it must appear, therefore, that the testimony sought to be obtained is material and necessary for the party making the application or the prosecution of the action. I think this affidavit fails to show that the testimony of the defendant is material or necessary to' plaintiff’s prosecution of the action. The plaintiff does not allege that he had .anything to do with the ultimate disposition of the property from which it is alleged the defendant realized large profits. The value of the services rendered in the advice given to the plaintiff and the use of his office and office force could have no relation to the profits that the defendant ultimately realized by a disposition of the property at a future time, of which the plaintiff had no knowledge and with which he had nothing to do.
While I am in favor of allowing examination of a party before trial in all cases'where, upon the facts stated, it can fairly be inferred that the object is to obtain the deposition of an adverse party as to the facts which are by the pleadings in dispute and. the proof of which would be competent upon the trial, to justify such an examination I think it must appear that the testimony desired really, relates to a material issue that must be proved .by the party making the application upon the trial of the action. That fact does not appear in this action, and ther.e are facts which justify the inference that' this application is not made in good faith to obtain testimony to be used upon this trial, but to use the information in other actions or proceedings. Under such circumstances we think the *722court below should have refused to compel the defendant to" submit to an examination and should have vacated the order obtained for that" purpose.- We do not wish to-be understood as expressing an opinion that should in any way influence the trial court as to the materiality of evidence of the profits of the defendant upon" the trial, "but simply to say that on the facts before the court it does not satisfactorily appear that the evidence of the defendant is material and necessary for the plaintiff and that the order should, therefore, have been vacated.
The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, add the order' for examination of the defendant before trial vacated, -with ten dollars costs.
McLaughlin -and Clarke, JX, concurred; Patterson, P. X, concurred in result; Houghton, X, dissented.