Majority
p. 421KIRKLAND v. MOSS. N. Y. Superior Court; Special Term, November, 1882.
Headnote
Depositions.—Examination op Party Before Trial.—Affidavit.The existence of the facts which a party desires to examine his adversary before trial to prove, must be alleged in the affidavit. An allegation that the party desires to prove such facts is insufficient.
Proceedings upon an order for the examination of defendant before trial, pursuant to section 873 of the Code of Civil Procedure.
This action was brought by John L. Kirkland and. others against Theodore Moss to recover for services rendered by plaintiffs as real estate brokers in letting certain premises in the city of New York.
C. P. L. Butler, Jr., for plaintiffs.
I. Albert Englehart, for defendant.
The plaintiff seeks to examine the defendant for the purpose of showing that he, the defendant, acted as principal, and not as the agent of one Wallack, as alleged by the defendant in his answer. The allegation in the moving papers, is that the “ plaintiffs desire to examine the defendant to prove that he had an agreement with the proprietor of the said premises .... by which he had full power and
p. 422
authority to make the contract alleged in the complaint on his sole responsibility, and by which he had an interest in the said premises.” This allegation is not sufficient. There is no allegation that there was any such agreement. The moving affidavit simply alleges that the plaintiffs desire to prove there was such an agreement, which means they desire to prove their case if they can.
Order vacated, with costs.