Plaintiff’s cause of action as set forth in the complaint is for the sum of $1,127.62, the purchase price of 25,058 feet of seamless steel tubing sold and delivered to the defendant pursuant to a written contract. This written contract provides for the sale and delivery of 100,000 feet of tubing, of which the tubing described above is a part. The contract stipulates the price and place of delivery, and provides amongst other items that the quality of the tubing is “ to be soft as per sample submitted and to stand bending as per sample.”
The defendant’s answer denies the material allegations of the complaint, and sets up a separate and distinct defense. The defendant first denies that the written contract constitutes the whole contract between the parties, alleging that the written contract was part of the entire contract, which provided that the tubing was to be “ in accordance with the sample submitted by the plaintiff to the defendant and accepted by him,” prior to the execution of the written contract. Defendant *296denies that the amount of tubing delivered conformed to the terms and specifications of the written contract ; that the agreed price and reasonable value thereof is as set forth in the complaint; and that the amount due therefor became payable in accordance with the terms of the written contract. The separate defense repeats the terms of the written contract set forth in the complaint and alleges that the written contract was made on the express condition and upon a warranty of the plaintiff that the tubing would in all respects be the same as the sample thereof submitted by the plaintiff to the defendant and agreed upon as a standard of tubing. This is merely a reallegation of the allegations contained in paragraph 1 of the answer in a different form.
The separate defense further admits the order referred to in the complaint for the delivery of about 25,000 feet of tubing; that the tubing was delivered, although the quantity thereof is denied. It then alleges that the tubing so delivered did not conform to defendant’s alleged sample in that it was rusty and unpolished; that the defendant refused to accept the same and offered to return it and that the plaintiff declined to accept it. It is in regard to all these allegations of the separate defense that plaintiff’s examination before trial is sought.
While the Appellate Division of the Supreme Court, Second Department, has held, Judge Gfaynor writing the opinion, that the right to examine a party before trial is absolute when the person seeking the order has complied with the Code and rules of the court (see Shonts v. Thomas, 116 App. Div. 854), still under the later decisions of the Appellate Division the rule seems to have been established that where the examination is sought for the purpose of discovering the adverse party’s testimony in order to prepare evidence to meet *297it at the trial, or for the real purpose of cross-examination, the application should be denied.
It appears by defendant’s affidavit upon which the order for examination of plaintiff was based that “ all the transactions herein were had with the plaintiff personally who has knowledge of all the matters set forth in the defense.” This being so, the defendant must already know substantially what the testimony of the plaintiff will be, it being presumed, of course, that the plaintiff will testify truthfully, which is the only presumption upon which the court can proceed.
Under the rules therefore recognized in the opinion of Mr. Justice Lehman in the case of Kornbluth v. Isaacs, 149 App. Div. 110, which opinion was affirmed by the Appellate Division, I think that the order for the examination of the plaintiff before trial should not have been granted, and that the order denying the motion to set it aside should be reversed.
Order should be reversed, with costs. -