Boyd v. McGuire — 137 A.D. 937

Majority

p. 937

First Department,

April, 1910.

In the Matter of the Application of Robert Boyd, Respondent, v. George W. McGuire, Jr., and Others, Impleaded with Harold J. Button, Appellant.

Headnote

Discovery examination of party expectant — affidavits.

Appeal from an order entered in the Hew York county clerk’s office on the 4th day of March, 1910, denying a motion to vacate an order directing the examination of Harold J. Button.

This is an appeal from an order denying a motion to vacate an order to examine one H. J. Button as a party expectant to an action to be hereafter brought. The affidavit upon which the order for examination was based contains nothing to show or even to suggest that the applicant has any cause of action against the appellant. On the contrary, if any inference on the subject can be drawn from the affidavit it is that the plaintiff has no such cause of action. The authorities are unanimous that such an order cannot be sustained under such an affidavit. (Muller v. Levy, 52 Hun, 123 ; Matter of Anthony & Co., 42 App. Div. 66 ; Tenoza v. Pelham Hod Elevating Co., 50id. 581.) The order should be reversed, with ten dollars costs and disbursements, and motion to vacate granted, with ten dollars costs. Present — Ingraham, P. J., McLaughlin, Clarke, Scott and Dow-ling, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.