only be said that the statute does not require that the action should be pending. On the contrary, section 872 of the Code of Civil Procedure expressly provides for cases where "an action is not pending, but is expected to be brought." The case of Manufacturing Co. v. Pettingill, 2 Abb. N. C. 162, relied upon by the appellant, was decided under section 391 of the old Code, which contained no equiv alent of the language just quoted from the present section 872. 2. That the order for examination and production of defendant's books could only be made on notice to the defendant, and could not be allowed ex parte. This objection rests upon a misapprehension of the meaning of the order. Subdivision 7 of section 872 makes provision in cases where, as here, the party is a corporation, and the witnesses to be examined are officers, for the production of books and papers, "as to the contents of which an examination or inspection is desired." This means an examination and inspection by the witnesses upon their oral examination, to enable them to answer proper inquiries, as upon a trial. It is well settled, upon authority, that an inspection and discovery, with the privilege of copying, by an adverse party, can only be had under, and in the manner provided by, sections 803-809 of the Code. Dick v. Phillips, 41 Hun, 603; McGuffin v. Dinsmore, 4 Abb. N. C. 241; Black v. Curry, 1 Civ. Proc. R. 193; Levey v. Railroad Co., 53 N. Y. Super. Ct. 267. And it is equally well settled that in proper case a witness may, under section 872, subd. 7, be required to produce books and papers as an adjunct to his oral examination, and to refer to them for the purpose of making his examination more effective. Talbot v. Doran & Wright Co. (Com. Pl. N. Y.) 9 N. Y. Supp. 478; Levey v. Railroad Co., supra; Chaffee v. Association (Super. N. Y.) 2 N. Y. Supp. 481; Bloom v. Extract Co. (Super. N. Y.) 18 N. Y. Supp. 179; Fenton v. Dempsey, 10 N. Y. St. Rep. 733; Black v. Curry, supra. 3. That the affidavit alleged the plaintiff's cause of action to be an accounting, and the facts shown clearly proved that the plaintiff was in possession of ample material to prepare a complaint. Conceding, for the sake of argument, that all this is so, we must nevertheless sustain the order. Where a fiduciary relation, or the rela tion of principal and agent, exists, and the facts are peculiarly within the knowledge of the one sought to be examined, his duty is one of full disclosure, and the technical rules applicable to such orders are relaxed. Carter v. Good, 57 Hun, 116, 10 N. Y. Supp. 647; Miller v. Kent, 59 How. Prac. 322, 10 Wkly. Dig. 361; Talbot v. Doran & Wright Co., supra; Fatman v. Fatman (Com. Pl. N. Y.) 18 N. Y. Supp. 847; Green v. Carey, 81 Hun, 496, 31 N. Y. Supp. S. As was said by Chief Judge Daly in Talbot v. Doran & Wright Co., supra, a case which was singularly like the present one in many of its features: "The principal has a right to know the facts in advance of the trial, in order to investigate such transactions, and make preparations for the trial." 4. The material allegations of the affidavits were all on information and belief, neither the source of the information nor the grounds of the belief being stated. Here, again, the principle of the cases last cited is applicable, and we cannot do better than quote once more from the opinion in Talbot v. Doran & Wright Co., supra: "The objection that the allegations of the plaintiff's affidavits are upon information and belief, and that there is a nere suspicion or conjecture as a basis for the examination, is not a sound ground, under the circumstances of this case. The plaintiff is entitled to the information he seeks from his brokers, and is not bound to make out a case against them, as a condition of the examination." 5. On the merits, as shown by the defendant's affidavits, no examination should be allowed. Bloomingdale, in his affidavit, says, "The account which I annex and make part hereof is a true and just statement, and furnishes all the information that the plaintiff could possibly obtain upon an examination." The account referred to is a most meager one, taken-so it is said in the subsequent affidavit of Weinman-from the ledger, and does not disclose the names of the persons with whom the alleged transactions were had. It was therefore useless as affording the plaintiff a clue by which he could follow up and investigate the alleged purchases which were claimed to have resulted in such disastrous losses. After Bloomingdale's denial that any further information could be had upon an examination, and after the counter affidavits of stockbrokers that reputable men in their business keep books which contain the names of persons to whom stock was sold, and of whom it was bought, and other details of each transaction, Weinman, in his said affidavit admits that the "names do appear in the stock purchase and sales books and on original contracts in the possession of the defendant," and then proceeds to make tardy profession of his willingness to permit an inspection at defendant's place of business. The language of Judge Davis, in Miller v. Kent, supra, seems just in point: # * * "A commission merchant or broker has no right to conceal from his customer any portion of his business and dealings in relation to the property alleged to have been bought and sold; and, where he withholds the fullest information on that subject, the right to examine before trial, in an action brought to recover alleged profits or to adjust the unsettled accounts, should be fully accorded. We are not at all satisfied with the good faith of the alleged proffers of the examination of the defendant's books, etc. The disingenuousness of the attempt thus to defeat the examination of defendant as a witness must have struck the court below as it does this court." Under all the circumstances, we do not think that the plaintiff should be compelled to accept an inspection in place of the exam. ination of the witnesses in connection with the books. For obvious reasons, the one remedy might not prove as effective as the other. For these reasons the order appealed from should be affirmed, with costs. All concur. DRAKE v. THOMPSON & DEER CO. (Common Pleas of New York City and County, General Term. April 1, 1895.) Appeal from special term. Action by Walter S. Drake against the Thompson & Deer Company. From an order denying a motion to vacate an order for the examination before trial of certain of defendant's officers, defendant appeals. Affirmed. Argued before DALY, C. J., and BOOKSTAVER and GIEGERICH, JJ. Howe & Hummel, for appellant. L Kargé, for respondent. GIEGERICH, J. The defendant is a corporation organized under the laws of this state, and engaged in the brokerage business, and the buying and selling of stocks and securities. The features of this case are, in all substantial respects, identical with those in Drake v. Weinman & Co. (herewith decided) 33 N. Y. Supp. 177, and nothing need be said in addition to the opinion there expressed. It follows that the order appealed from should be affirmed, with costs. All concur. In re PINE HILL. (Ulster County Court. April 12, 1895.) 1. INCORPORATION OF VILLAGES-VALIDITY-NEGLIGENCE OF INSPECTORS. A failure or neglect on the part of any member of the board of inspectors of election to properly comply with the law relating to the incorporation of villages does not, of itself, vitiate the election, though it may subject such inspector to punishment. 2. SAME-NOTICE OF ELECTION-WHO MAY SIGN. Under Laws 1870, c. 291, tit. 1, § 7, as amended by Laws 1888, c. 172, which provides that a notice to determine whether certain territory shall be incorporated as a village "shall be signed by at least twenty of the electors resident within the bounds of the said proposed village who shall be liable to be assessed for the ordinary and extraordinary expenditures of said village," a man who owns no property is not qualified to sign the pec tion, though his wife owns real estate within such territory, on which she is liable to assessment and taxation. Proceeding for the incorporation of a portion of the town of Shandaken, in the county of Ulster, as the village of Pine Hill. The certificate and other papers relating to the election were duly filed, and one of the electors appeals. Election set aside. F. B. Andrus and John G. Van Etten, for appellant. CLEARWATER, J. This is an appeal to review proceedings taken to incorporate a portion of the town of Shandaken, in the county of Ulster, as the village of Pine Hill. It appears that on the 11th day of March, 1895, an election was held within the limits of the district which it is proposed to incorporate, and that on the 15th day of March a certificate of such election was duly filed in the office of the clerk of the county of Ulster. It is alleged by the appellant that Joseph H. Riseley, the acting supervisor of the town of Shandaken, at the time of the holding of the election, did not meet with the board of inspectors until after a number of ballots had been deposited in the ballot box; that none of the inspectors of election, or either the poll or ballot clerks, took the constitu tional oath of office prior to the organization of the board of inspectors or the receiving of ballots; and that the town clerk of the town was not in attendance during the day, and did not sign certificate of election or the canvass of votes. A careful examination of the various acts passed by the legis lature for the regulation and conduct of elections has led me to the conclusion that they should be liberally construed in favor of the election itself, and that a failure or neglect upon the part of any member of the board of inspectors to properly comply with the law does not, of itself, vitiate the election, although it may and does subject the derelict officer to severe penalties and punishment. I am therefore inclined to disregard so much of the objections filed by the appellant as are based upon a failure of the election officers to properly discharge the duties imposed upon them by law. The statute provides that any part of any town, not in any incorporated village, containing a resident population of not less than 300 persons, may be incorporated as a village by complying with the provisions of the act, one of which is that a notice to determine whether the proposed territory shall be incorporated, signed by at least 20 of the electors resident within the bounds of the proposed village, who shall be liable to be assessed for the ordinary and extraordinary expenditures of the village, shall be published in a newspaper, if there be one within the territory, and shall be posted in 10 public places within its bounds, at least 30 days before the holding of the election. It seems to be conceded that the notice which was signed was properly published and posted within the stipulated time. It is claimed, however, by the appellant, that, of the 24 persons who signed the notice, at least 10 were not liable to be assessed, as required by the statute. It has repeatedly been held that this provision of the statute is jurisdictional, and that a failure to substantially comply with its requirements is fatal to the validity of the proceedings for incorporation, for the obvious reason that it is necessary, before a village be incorporated, that at least 20 persons liable to be assessed for the increased expense of maintaining a distinct municipality shall signify in writing their willingness to assume their proportionate share of the additional burden. All of the signatories were confessedly electors resident within the bounds of the proposed village. Some of them did not own any property, but were married to women who were freeholders in their own right, seised of real estate within the territory proposed to be incorporated, and liable to assessment and taxation thereon. It is urged that the statute should be so construed as to include these signers, but to this construction I am unable to agree. The statute is clear and unambiguous in its language, admitting of no other interpretation than the simple import of the words: "Shall be signed by at least twenty of the electors resident within the bounds of the said proposed village, who shall be liable to be assessed for the ordinary and extraordinary expenditures of said village." 1 Th constitution defines an elector to be a male citizen of the age of 21 years, who shall have been a citizen of the United States 10 days, and an inhabitant of this state 1 year, next preceding any election, and for the last four months a resident of the county in which he may offer his vote. Const. art. 2, § 1. The wives of 1 Laws 1870, c. 291, tit. 1, § 7, as amended by Laws 1888, c. 172. these signatories were not electors. The husbands who signed the notice were electors, but they were not liable to be assessed for the ordinary and extraordinary expenditures of the village. It is also claimed that some of the signatories were the owners of an interest in real property, the title to which was in others, and that they, therefore, were competent, and that still others, having no interest in real estate, were the owners of personal property liable to assessment. But some of the signatories admitted that they were insolvent to such an extent that unsatisfied judg ments existed against them, upon which executions had been issued to the sheriff of the county, and by him returned unsatisfied, because of his inability to find sufficient real or personal property out of which to satisfy them, and that these judgments had never been paid. It can hardly be claimed that signatories thus situated, owning no freehold interest in real estate, and whose interest in personal property is of so vague and indefinite a character that it cannot be seized in satisfaction of an execution, can correctly be said to possess property liable to assessment for the ordinary and extraordinary expenses of the new municipality. A careful review of the entire testimony, with every disposition to be indulgent to the proposed incorporators, so far as that is possible without the violation of any well-settled legal principle, leads me to the conclusion that at least six of the signatories were not competent, within the meaning of the law. It is not without. regret that I have reached this conclusion, as this is the second attempt made by the residents of Pine Hill to effect an incorporation. The difficulty in both instances seems to have originated from a lack of sufficient care in taking the initiatory and jurisdictional steps. It is not a proper exercise of judicial power to so construe a statute as to permit its evasion, and I am constrained to hold that the proceedings are fatally defective, the election to have been illegal, and to grant an order directing another election to be held to determine the question. (86 Hun, 122.) OPPENHEIM et al. v. WATERBURY et al. (Supreme Court, General Term, First Department. April 11, 1895.) 1. GUARANTY-CONSIDERATION. An agreement by plaintiffs, stockbrokers, to purchase and carry certain shares of stock for one G., on condition that they should receive the guaranty of defendants, pursuant to which the shares are so purchased, is a sufficient consideration to support the guaranty executed by defendants after the purchase was made. 2. STATUTE OF FRAUDS-SUFFICIENCY OF MEMORANDUM-EVIDENCE. The fact that the written memorandum of a promise to answer for the debt of another is ambiguous does not render it void, under the statute of frauds; but the ambiguity may be explained by parol evidence. Appeal from circuit court, New York county. Action by Edward L. Oppenheim and others against James M. Waterbury, G. Weaver Loper, and Matthew Griffin to recover the purchase price of certain stocks, and plaintiffs' commissions on the purchase price thereof. There was a judgment in favor of |