The appeal is from an order staying the plaintiff, a foreign banking corporation, from proceeding with this action until it produces its assignors for an examination before trial. The assignors were two officers who had stolen funds from the plaintiff bank. In an effort to obtain restitution for its stockholders, the bank had obtained from these officers an assignment of their rights in an account which they had with the defendant stockbrokers. In aid of affirmative defenses, consisting of an account stated, payment and laches, the defendants obtained an order to examine before trial the assignors of the plaintiff. The defaulting officers are not now connected with the plaintiff, remain without the.State, and there is nothing to show that the plaintiff has any control over them. Nor does it appear that the plaintiff is lacking in due diligence -in assisting the defendants to obtain the presence of the two assignors for the purpose of the examination before trial. If the record were otherwise or if it had appeared even inferentially that the assignment of the cause of action was for the purpose of denying to the defendants their right to an examination before trial, the action would have been properly stayed. The defendants may, of course, procure the testimony by means of a commission and, if the circumstances warrant, by an open commission. It follows that upon this record the order staying the plaintiff from proceeding until it produces its assignors was not justified.
The order should, therefore, be reversed, with ten dollars costs *682and disbursements to the appellant, and the motion denied, with ten dollars costs.
Present — Dowling, P. J., Finch, McAvoy, Martin and Proskauer, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.