The plaintiff alleges in separate counts two causes of action: (1) To recover three installments of salary alleged to be due and unpaid under a contract for the employment of the plaintiff as a motion picture star for a period of six months, and (2) to recover damages for a wrongful discharge before the expiration of the period of employment. The answer denies performance entitling plaintiff to recover the installments of salary for services rendered prior to the alleged discharge, and also denies the discharge. It is incumbent on plaintiff both to prove performance and the discharge; and to establish these facts it was proper to authorize the examination of the defendant. The order for the examination of the defendant, however, is too broad. It authorizes an examination of the defendant with respect “to the matters set forth in the annexed affidavit relating to the plaintiff’s cause of action as set forth in the *433complaint herein.” It may have been intended to confine the examination to proof of the issues on which plaintiff has the affirmative; but it is not clearly so limited. The affidavit relates not only to the matters upon which the plaintiff has the burden of proof in the first instance; but to the defenses and counterclaim, and to his reply thereto, and it may be said that they all relate, in a sense, to his cause of action. The order for the examination, therefore, should have been modified by limiting the examination to the issues upon which the plaintiff has the affirmative.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to vacate in toto the order for the examination denied, but that order should be modified, without costs, by confining the examination to the issues upon which the plaintiff has the burden of proof'in' the first instance, viz., with respect to performance and the discharge.
Present—Clarke, P. J., Laughlin, Dowling, Page and Davis, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, and order for examination modified as stated in opinion, without costs. Order to be settled on notice.