Cohn v. Hubert — 140 A.D. 507

Majority

p. 507

Casper Leopold Cohn, Respondent, v. Conrad Hubert, Appellant.

First Department,

November 18, 1910.

Headnote

Discovery — examination of party before trial denied.

A plaintifE suing for the breach of a contract of employment is not entitled to examine the defendant for the purpose of framing his complaint where the moving affidavit sets out every essential element of the cause of action, save only the amount of damage.

Appeal by the defendant, Conrad Hubert, 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 6th

p. 508

day of October, 1910, denying the defendant’s motion to vacate an order for his examination before trial to enable plaintiff to frame a complaint.

George Hahn, for the appellant.

Edwin, Vandewater, of counsel [J. Noble Hayes, attorney], for the respondent.

The affidavit upon which the order for the examination of the defendant was obtained avers that this action is brought for the breach of a contract of employment; that on or about October .5, 1909, the defendant employed deponent as sales manager and entered into an agreement, the terms of which are contained in a certain letter from the defendant, accepted by the plaintiff, and set up in extenso in the affidavit; that deponent entered upon the said service and continued therein until on or about the 31st of December, 1909, when defendant broke the said contract and without right or cause discharged deponent from his said employment, by reason of which plaintiff has been deprived of the benefit of said contract and the means of earning his living. In brief, the plaintiff in his affidavit sets up every essential element of the cause of action; the contract of employment, commencement and continuance of service thereunder, and an unwarrantable breach thereof by the defendant; and he states that it is necessary for him to have the examination prayed for in order properly to frame a complaint herein and make an estimate or approximation of the damages sustained by deponent by reason of the said breach.

We said in Brick v. Shaff ( 128 App. Div. 264 ) : “We have uniformly refused an examination before complaint merely to enable the plaintiff to allege the exact amount due him, and we s_ee no reason for departing from the rule in this case.”

The order appealed from should be reversed, with ten dollars costs and disbursements to the appellant, and the motion to vacate granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.