SCOTT, J.:
The action is for an injunction to restrain defendant, formerely plaintiff's partner, from soliciting former customers of the firm and otherwise using its good will. The complaint contains the allegations usual in such cases, as to what defendant is doing and has done. The answer consists mainly of denials except as to some relatively unimportant matters which are admitted and embraces no affirmative defense. As was said by this court in Oakes v. Star Company ( 119 App. Div. 358): "It is still necessary to show, by the recitation of appropriate facts and circumstances, that the testimony sought to be elicited is material and necessary for the party making the application, * * * and it is incumbent upon the party seeking the examination to make this fact appear." In this regard the defendant has wholly failed. He does not suggest and we cannot imagine what evidence he can expect to extract from plaintiff which will be necessary to his defense. The only apparent purpose for such an examination is to discover in advance of the trial what evidence plaintiff has to support his complaint. This is not the legitimate purpose of such an examination. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Ingraham, P.J., Clarke, Miller and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.