¶1This is an appeal from an order denying defendants’ motion to vacate an order for the examination of one of the defendants before trial. The action is to recover $400 paid by plaintiffs to defendants as margin on stock transactions. It is plaintiffs’ claim that defendants operated a “ bucket shop ” and never really purchased or sold stock for plaintiffs, nor was it ever intended that they should by either party, and that the transaction was a mere wagering contract and, therefore, void. Defendants claim that they actually purchased and sold stock for plaintiffs and did a bona, fide brokerage business. It seems, from the affidavits, that the plaintiffs wish to prove by the defendant James M. Leopold some of the facts alleged in their complaint by showing what was actually done, and the manner in which the defendants conducted their business, and all circumstances that may tend to prove that there was no real purchase or sale made by them; all of which would be material to the plaintiffs’ case and might be in support thereof. Peck v. Doran & Wright Co., 57 Hun, 343; Kenyon v. Luther, 19 N. Y. St. Kepr. 32. The claim that the order is erroneous in that it contains á direction for the production of books and papers is without force. The order does not contain such a direction. There is .a provision in the order for the issuance of a subpoena duces tecum which is sanctioned by Crompton v. Dobbs, 119 App. Div. 331.
¶2The order should be affirmed, with ten dollars costs and disbursements.
¶3Present: Gildersleeve, MacLean and Seabury, JJ.
¶4Order affirmed, with ten dollars costs and disbursements.