Kessler v. Levy & Levis Co. — 7 A.D. 142

Majority

p. 142

William Kessler and Others, Appellants, v. The Levy & Levis Company, Respondent.

Headnote

Examination of the defendant to enable the plaintiff to prepare the complaint—when denied.

An affidavit used upon an application by the plaintiff,- in an'action brought to recover for the conversion of goods, for the examination of the president of a. corporate defendant, in order to enable the plaintiff to prepare his complaint, stated that, the defendant, in violation of its duty, had sold the goods, made fraudulent returns and converted to its own use about $1,500 of the proceeds.

Meld, that the affidavit in itself, contained all the allegations necessary to an-action for conversion, and that the application should not be granted.

Appeal by the plaintiffs, William Kessler and others, from an •order of' the Supreme Court,, made at the Kew York Special Term and entered in the office of the clerk of the county of Kew York on the 23d day of April, 1896, vacating- an order for the examination of the president of the defendant, before the trial of the action,

David Neumark, for the appellants.

C. J. Shearn, for the respondent.

The order for the.examination of the president of the defendant was granted upon, an affidavit stating that such examination was nec

p. 143

essáry to enable the plaintiffs to prepare their complaint. That order was vacated for the reason that the papers did not disclose sufficient grounds upon which to require the defendant, through its president, then to submit to an examination. The action is for the conversion of a portion of the proceeds of goods sold by the defendant as the selling agent of the plaintiffs, and the affidavit of Alfred Kessler, one of the plaintiffs, states that the defendant, in violation of its duty, sold the goods, made fraudulent returns and has converted to its own use about $1,500 of the proceeds. The court below was right in stating that the affidavit did not disclose sufficient grounds upon which to require any one connected with the defendant to submit to an examination for the purpose of enabling the plaintiffs to frame a complaint. Every allegation necessary in the complaint for the conversion of the $1,5Q0 is contained in Mr. Kessler’s affidavit, and there is no occasion for an examination of the character asked for to enable the plaintiffs to state in the complaint any fact which would be the basis of liability or even to ascertain the amount of damages to be demanded for the conversion. ' That the affidavit discloses a state of facts which may render it necessary 'for the plaintiffs to examine some one of the defendant’s officers as a witness before trial may be conceded, but that was not the ground upon which the order for examination now before us was applied for.

The order appealed from vacating the order for examination must be affirmed, with ten dollars costs.

Present—Van Brunt, P. J., Barrett, Patterson and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.