App. Div.] First Department, March, 1920. of Bronx county for the defendant's breach of the contract in failing to furnish and deliver the material. The defendant demurred to the complaint and the plaintiffs discontinued the action. Plaintiffs then brought an action in the Supreme Court for the breach of the contract and the complaint was dismissed on the opening of the case. The plaintiffs then brought this action for a reformation of the contract and for the recovery of damages for the breach thereof. They asked to have the contract reformed by substituting the name of the architect, Reilly, for the name of the engineer, Hornum, both in their letter and the defendant's acceptance thereof, on the ground of mutual mistake; and the contract has been so reformed. Until they brought this action they made no claim that the contract was not properly evidenced by the letters. The theory on which they claim the name of the engineer was inserted in their letter by mistake is presented by the testimony of their employee, Stein, who wrote the letter. He testified that while writing the letter he was called to the telephone by Hornum and that on returning to the typewriter and having Hornum's name in mind from the telephonic conversation, he thoughtlessly and absent-mindedly wrote it in the letter. In support of that contention evidence was given tending to show that the drawings of the architect were sufficient and that at the most they only needed to be supplemented by information from Hornum. It is quite improbable that the witness would have remained absent-minded while writing in not only the name of Hornum but also that he was an engineer, and where he was located, and then writing the name and the address of the architect. But if his testimony were accepted as true, at most, it merely shows a mistake on the part of the plaintiffs of which they did not even notify the defendant. The defendant received and accepted the letter as written and in its acceptance undertook to manufacture the material in strict accordance with the details furnished by Hornum, the engineer, and to the satisfaction, and subject to the inspection and acceptance of the architect. The wellsettled rule is that the evidence of mutual mistake essential to warrant the reformation of a contract must be " clear, positive and convincing." (Christopher St. R. R. Co. v. 23d St. R. Co., 149 N. Y. 51.) Here there is no evidence of a mutual First Department, March, 1920. [Vol. 191. mistake and, therefore, there was no ground for the reformation of the contract. The award of damages was incidental to the equitable relief and otherwise the defendant would have been entitled to a jury trial with respect thereto. It follows that the findings of fact and conclusions of law inconsistent with these views should be specified in the order and reversed and appropriate findings and conclusions in accordance therewith made and 'the judgment reversed, with costs, and the complaint dismissed, with costs. CLARKE, P. J., DOWLING, MERRELL and PHILBIN, JJ., concur. Judgment reversed, with costs, and complaint dismissed, with costs. Settle order on notice. ABRAHAM L. SCHEFF and PHILIP HORINSTEIN, Copartners Trading under the Firm Name and Style of SCHEFF & HORINSTEIN, Appellants, v. Louis LEWIS and NATHAN GOLD, Copartners Trading under the Firm Name and Style of ARGUS KNITTING MILLS, Respondents. First Department, March 5, 1920. Depositions examination of witness before trial · grounds for granting of order for examination under subdivision 5 of section 872 of Code of Civil Procedure mere fact that witness is assignor of plaintiffs' cause of action insufficient - purpose of examination. Defendants on an application for the examination of a witness before trial must show under subdivision 5 of section 872 of the Code of Civil Procedure that the witness is about to depart from the State or is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial or other special circumstances rendering it proper that he should be examined. The mere fact that the witness is one of the assignors of plaintiffs' cause of action does not authorize his examination under subdivision 5 of section 872 of the Code of Civil Procedure. This subdivision is to be read in connection with section 882 of the Code of Civil Procedure, and the examination is only authorized for the purpose of perpetuating the testimony and for protecting the moving party in case he is unable to obtain the presence of the witness on the trial. App. Div.] First Department, March, 1920. APPEAL by the plaintiffs, Abraham L. Scheff and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of January, 1920, denying plaintiffs' motion to vacate an order for the examination. of a witness before trial. Budd S. Weisser of counsel [Samuel S. Breslin, attorney], for the appellants. Henry S. Miller of counsel [Newmark & Miller, attorneys], for the respondents. LAUGHLIN, J.: This is an action for damages for the breach of a contract for the sale and delivery of goods by the defendants to the Isaac Mendelson Company for the account of the plaintiffs. The plaintiffs allege an assignment to them of all the rights, title and interest of the Isaac Mendelson Company by virtue of the agreement. Defendants put in issue the allegations of the complaint with respect to the making of the contract, breaches thereof, damages and the assignment, and for a separate defense pleaded that any agreement made rested in parol and was void under the Statute of Frauds.* On a demurrer to the complaint for insufficiency it was held at Special Term that the contract, which is made part of the complaint, and a copy is annexed thereto, showed that it was made with the Isaac Mendelson Company and not with the plaintiffs, but that the complaint stated a good cause of action under the assignment of the Isaac Mendelson Company. It is immaterial on this appeal whether the plaintiffs have a cause of action in their own right for a breach of the contract or as assignee, for in neither event is the order for the examination an order for the examination of a party. The order is for the examination of Isaac Mendelson only, who was a member of the copartnership known as the Isaac Mendelson Company. The purpose of the examination as disclosed by the affidavit upon which the order was made is to show that the Isaac Mendelson Com * See Pers. Prop. Law, § 31, subd. 6; Laws of 1911, chap. 571, § 2; Pers. Prop. Law, § 85, as added by Laws of 1911, chap. 571.-[REP. First Department, March, 1920. [Vol. 191. pany made no agreement with the defendants for the purchase of the goods and had no claim against the defendants by reason of any alleged breach of contract and that the testimony was necessary and material for the defense of the action for the reason that the defendants did not know whether to prepare to controvert damages suffered by the Isaac Mendelson Company or by the plaintiffs. The order for the examination requires the witness to submit to an examination concerning the agreement alleged in the amended complaint between the defendants and the Isaac Mendelson Company, damages sustained by the Isaac Mendelson Company by reason of the alleged breach of the agreement, and the assignment of any cause of action under the agreement to the plaintiffs. Even if the order had been for the examination of one or both of the plaintiffs it should have been vacated for it authorizes an examination only with respect to facts that it will be incumbent on the plaintiffs to prove as part of their affirmative case; but since it is an order for the examination of a witness, it was incumbent on the defendants to show under subdivision 5 of section 872 of the Code of Civil Procedure that the witness was about to depart from the State or was so sick or infirm as to afford reasonable ground to believe that he would not be able to attend the trial or other special circumstances rendering it proper that he should be examined. The only fact shown, which it is claimed constitutes a compliance with these requirements, is that the witness is one of the plaintiffs' assignors; but this court has held that the mere fact that the witness is an assignor of the cause of action does not authorize his examination under said subdivision 5 of section 872 (Bernstein v. Solomon, 140 App. Div. 316), nor would the fact that a witness is an employee of the adverse party authorize such an examination. (American Woolen Co. v. Altkrug, 139 App. Div. 671.) This subdivision is to be read in connection with section 882 of the Code of Civil Procedure and the examination is only authorized for the purpose of perpetuating the testimony and to protect the moving party in case he is unable to obtain the presence of the witness on the trial. (American Woolen Co. v. Altkrug, supra; Harburger v. Westchester Fire Ins. Co., 167 App. Div. 1.) It follows that the order should be reversed, with ten dollars App. Div.] First Department, March, 1920. costs and disbursements, and the motion to vacate the order for the examination granted, with ten dollars costs. CLARKE, P. J., DOWLING, MERRELL and PHILBIN, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. SMART SET SPECIALTY CLOTHING COMPANY, INC., Respondent, v. FRANKLIN KNITTING MILLS, Appellant. Sales First Department, March 5, 1920. - action by corporation for breach of contract between defendant and stockholder of plaintiff for sale and delivery of goods effect of prior action by stockholder of plaintiff to recover for same breaches of contract. In an action by a corporation engaged in manufacturing garments from knit goods of the kind manufactured by the defendant, it was alleged: First, that defendant and one M., the controlling stockholder of the plaintiff, made an agreement for the benefit of the plaintiff, under which it was contemplated that the plaintiff would manufacture garments exclusively from merchandise bought of the defendant; that the defendant has refused to comply with and has repudiated the contract; second, that the goods delivered by the defendant were not of a merchantable quality. Said agreement reciting that the parties were interested in the plaintiff as stockholders and creditors was agreed to by the wife of M., also a stockholder of the plaintiff and was also ratified and confirmed by the plaintiff and by all of its stockholders and directors. Prior to the commencement of this action, a complaint in an action by M. in his individual right against the defendant alleging the same breaches of the contract set forth herein, and those only, but basing his damages on the diminution in the value of his stock, was sustained by this court. Held, that in view of the former decision, the complaint in this action cannot be sustained, for to hold that the defendant incurred separate obligations to M. and to the plaintiff for the breaches of the contract with respect to the delivery of the goods, would necessarily result in a double recovery of damages. There is not a joint liability to the plaintiff and to M. for damages for the alleged breaches of the contract, for the obligations incurred by the defendant were necessarily either to M. or to the plaintiff and not to both. |