Majority
p. 263BOYD v. McGUIRE et al. (Supreme Court, Appellate Division, First Department. April 8, 1910.) Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, CLARKE, and DOWLING, JJ.
Headnote
Discovery (§ 55[1] )—Examination of Party Before Trial—Sufficiency of Affidavit.An adffiavit for an order to examine one as a party expectant to an action to be thereafter brought, containing nothing to show or suggest that applicant .has any cause of action against such person, is insufficient.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 68-70: Dec. Dig. § 55.[1] ]
Appeal from Special Term, New York County.
Application by Robert Boyd to examine George W. McGuire, Jr., H. J. Button, and others before trial. From an order denying a motion to vacate an order directing the examination of Button, he appeals
Reversed
Edward P. Lyon, for appellant.
J. Henry Work, for respondent.
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 ,
p. 264
5 N. Y. Supp. 118 ; In re Anthony, 42 App. Div. 66 , 58 N. Y. Supp. 907 ; Tenozia v. Pelham Hod. El. Co., 50 App. Div. 581 , 64 N. Y. Supp. 99 .
Order reversed, with $10 costs and disbursements, and motion to vacate granted, with $10 costs.
Cases cited
- Tenoza v. Pelham Hod-Elevating Co. 50 App. Div. 581 p. 264