Plaintiffs are the trustees in bankruptcy of J. M, Fiske & Co., a stock brokerage firm, and sue to recover $45,910.51, being a balance due to the said firm on account of purchases and sales of stocks and securities made by said firm for and on account and at the request of the defendant. Plaintiffs also *281claim upon an account stated between themselves as the said trustees and defendant.
The answer denies all the material allegations of the complaint, sets up two separate defenses, a partial defense and counterclaim and two separate counterclaims. The order authorizes a general examination of the defendant, requiring him to submit to an examination and testify concerning the matter stated in the affidavits and relevant to the issues in this action.
The plaintiffs are entitled to the examination of the defendant respecting all matters relevant to the causes of action set up by them and material and necessary to prove in support thereof. We think that so far as the defenses are concerned, plaintiffs are endeavoring to obtain a preliminary cross-examination of the defendant as to his claims and are not endeavoring to obtain testimony material and necessary to their own cause of action for the purpose of introducing the same upon the trial.
The pleadings and affidavits indicate that the defendant must go upon the stand to establish his affirmative defenses and can be then subjected to cross-examination. We do not think that the papers make out a case justifying a preliminary cross-examination as to such matters of defense.
The order appealed from should be modified by limiting the examination to the matters set forth in the complaint and material and necessary to support the allegations thereof, and as so modified affirmed, without costs to either party.
Scott and Miller, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.