App. Div.] First Department, March, 1910. It seems to me, therefore, that the court erred in not directing a verdict for the plaintiff. There was no dispute of fact. Plaintiff's office hours were from nine o'clock in the morning until four o'clock in the afternoon, and all of the services for which a claim is here made were rendered outside of office hours. There is no evidence tending to show that the services were rendered gratuitously or that the plaintiff did not expect to be paid therefor; on the contrary, the evidence is all the other way. I also think that the court erred in charging the jury that the burden was upon the plaintiff to show that the services were not a part of his duty, and that he did not expect to be paid. The burden was upon the city to show such facts. The verdict of the jury, therefore, is clearly against the weight of evidence, and for that reason the judgment and order are reversed and a new trial ordered, with costs to appellant to abide event. CLARKE, SCOTT, MILLER and DOWLING, JJ., concurred. Judgment and order reversed and new trial ordered, costs to appellant to abide event. GUSTAVUS A. ROGERS, Appellant, v. JACOB P. ADLER, Respondent. First Department, March 11, 1910. Discovery-examination of party before trial. Although there is a growing tendency to favor the examination of a party before trial, facts must be presented from which the court can see that the application is made in good faith and that the facts sought will be admissible. An order for the examination of the plaintiff before trial will not be granted on mere allegations that his testimony is material and necessary for the prosecution of the action by the defendant, where it is apparent that the only purpose is to discover whether the plaintiff has a cause of action. APPEAL by the plaintiff, Gustavus A. Rogers, 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 19th day of January, 1910, denying the plaintiff's motion to vacate an order for his examination before trial. First Department, March, 1910. [Vol. 137. M. Spencer Bevins, for the appellant. J. A. Seidman, for the respondent. MCLAUGHLIN, J.: This action is brought to recover for work, labor and services of an attorney and broker in procuring a person ready, willing and able to take an assignment from the defendant of a lease of real estate in the city of New York. The answer is a general denial. After issue had been joined the defendant moved, upon an order to show cause, for the examination of the plaintiff before trial. The motion was granted and plaintiff appeals. There seems to be a growing tendency in favor of such examinations, to the end that justice may be promoted by preventing surprises at the trial and lessening, so far as possible, the expenses incident to it; but in every case where such examinations are permitted, facts must be presented from which the court can see that the application is made in good faith and that the proof of the facts concerning which the examination is desired would be admissible at the trial. (Ehrich v. Root, 122 App. Div. 719.) Here the papers upon which the order was granted permitting the examination are to the effect that the action was begun to recover a certain sum for services, and that the testimony of the plaintiff is "material and necessary" for the prosecution of the action by the defendant. Not a single fact is set forth showing how the testimony of the plaintiff will be "material and necessary," and, besides, the defendant will not have to prosecute the action. It is true the defendant states he intends to read the evidence upon the trial, but for what purpose does not appear, unless it be to show that the plaintiff cannot prove a cause of action. If this is the object, then the application is not made in good faith. There is a further allegation in the moving papers that the testimony of the plaintiff is "material and necessary" for the prosecution of the action by the defendant, in order to prove that the plaintiff for a number of years has been and still is in the employ of the William Fox Amusement Company as its counsel and that he is also the attorney and counsel for William Fox personally. Just what William Fox or the William Fox Amusement Company has to do with the issues involved in the subject-matter of this litiga App. Div.] First Department, March, 1910. tion nowhere appears. Upon the issue as framed, it is sufficient that there is nothing in the record before us to indicate that the testimony of the plaintiff is material and necessary for the defendant, and for that reason the motion should have been denied. The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the plaintiff before trial granted, with ten dollars costs. CLARKE, LAUGHLIN, SCOTT and DOWLING, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination granted, with ten dollars costs. EUGENE F. KACHEL, Respondent, v. CHARLES STUTZ, Appellant. Practice First Department, March 11, 1910. dismissal for failure to prosecute - inadequate excuse. A complaint should be dismissed for failure to prosecute, where the plaintiff has not served a notice of trial or filed a note of issue, or placed the cause upon the calendar for trial, and younger issues of the same nature have been reached and disposed of, unless there be an adequate excuse for the delay. It is no excuse that the plaintiff, by reason of lack of money, was unable to pay his attorney a retainer. APPEAL by the defendant, Charles Stutz, 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 28th day of December, 1909, denying the defendant's motion to dismiss the complaint for want of prosecution. Alfred Beekmann, for the appellant. MCLAUGHLIN, J. : This action was commenced in October, 1907, to recover damages claimed for alleged breach of contract. In December, 1909, the defendant moved to dismiss the complaint for want of prosecution. The motion was denied and he appeals. Issue was joined on the 31st of October, 1907, since which time First Department, March, 1910. [Vol. 137. plaintiff has taken no steps whatever to bring the action to trial. He has not served a notice of trial, filed note of issue, or placed the cause upon the calendar for trial. Younger issues of substantially the same nature have been reached on the general calendar, tried and disposed of. The only excuse offered by the plaintiff for not proceeding in the action is to the effect that, by reason of his financial condition, he has not been able to pay his attorneys a retainer, and they will not prepare the cause or try the action until he has done so and that he intends to pay them as soon as he is able. The motion to dismiss should have been granted. The rule is well settled that where junior issues have been reached for trial the plaintiff must show, in order to defeat a motion to dismiss for want of prosecution, facts sufficient to excuse his apparent neglect to proceed, and that in the event of his failure to do so, the motion should be granted. (Anderson v. Hedden & Sons Co., 116 App. Div. 231; Ferber v. Newgold, 133 id. 739.) The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. CLARKE, LAUGHLIN, SCOTT and DOWLING, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. BERNHARD VOGEL, Plaintiff, v. SIMON NACHEMSON and Others, Defendants, Impleaded with MINNIE SABLE, Respondent, and JENNIE NACHEMSON, Appellant. First Department, March 11, 1910. Foreclosure surplus - rents collected by receiver-right of junior mortgagee superior to that of mortgagor. After a sale on foreclosure and payment of all sums due the mortgagee a surplus consisting of rents collected by a receiver appointed for that purpose should be paid to a junior mortgagee rather than to the owner of the equity of redemption. This is true, although the junior mortgagee did not extend the receivership for the benefit of her mortgage. Especially is this so where the junior mortgage by its terms assigned the rents to the mortgagee in the event of a default. App. Div.] First Department, March, 1910. APPEAL by the defendant, Jennie Nachemson, 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 5th day of January, 1910, directing a receiver appointed in a foreclosure action to pay rents which he had collected to the owner of the equity of the property foreclosed. Louis L. Kahn, for the appellant. Herman Kahn, for the respondent. MCLAUGHLIN, J.: This action was brought to foreclose a mortgage upon real estate and for a sale. During the pendency of the action the plaintiff had a receiver appointed to collect the rents. After applying the proceeds of the sale upon the plaintiff's mortgage there remained in the hands of the receiver, after paying all expenses of the receivership, $390.67. The plaintiff moved for the discharge of the receiver and the distribution of this sum. The respondent, as the owner of the equity of redemption, claims that she is entitled to it, and a like claim is made by the appellant, a junior mortgagee. The learned justice sitting at Special Term decided in favor of the respondent and made an order directing such distribution, and the appeal is from that order. I have been unable to find any authority bearing directly upon the question, but upon principle it seems to me that the owner of the junior mortgage is entitled to the money in preference to the owner of the equity of redemption. If the plaintiff in the foreclosure action had applied the sum now in question towards the payment of his mortgage that would have left a surplus of an equal amount derived from the proceeds of the sale of the real estate and to this the appellant would clearly have been entitled as holding the first lien thereon. It is true the receiver was appointed for the benefit of the plaintiff, but the appellant, as the holder of a junior mortgage, would have had the right to apply to the court to extend the receivership for the benefit of her mortgage, and had she done so she would have been entitled to the sum now sought to be distributed. The fact that she did not make such application ought not to deprive her of that to which, in equity, she is clearly entitled |