p. 118(Supreme Court, General Term, First Department.Headnote
Pbactice in Civil Cases—Examination of Defendant—Affidavit.An affidavit for an ex parte order for the examination of defendant for the purpose of framing the complaint, averred that the action was upon a written contract, between plaintiff and defendants, and was to recover certain moneys due plaintiff because of a provision in the contract for the payment of a certain per cent, of the profits earned in the business of the defendants, and that plaintiff had performed his part of the contract. Held that, as the plaintiff must show the existence of a cause of action, the affidavit was insufficient, as there was no allegation of breach on defendants’ part, or that any profits had been earned.
Appeal from special term. New York county.
Defendants appeal from an order denying motion to vacate an order for the-examination of the defendant Bernard Levy before trial.
Argued before Van Brunt, P. J., and Bartlett, J.Horwitz & Hershfleld and Wales F. Severence, for appellants. Blandy & Hatch and Z. S. Sampson, for respondent.
When a plaintiff for the purpose of framing his complaint obtains an order for the examination of a defendant before trial, he must establish by affidavit the existence of a cause of action in his behalf. We have-recently had occasion frequently to enforce this rule, and must reiterate it once more in the case at bar. The affidavit upon which the order for the examination of the defendant Bernard Levy was granted does not state facts sufficient to show that a cause of action exists in favor of the plaintiff. The only averments which it contains tending to establish a cause of action are as-follows: “The action is brought upon a written contract of employment by the defendants under the firm name of Bernard Levy & Co. of the plaintiff for the years 1887 and 1888, and is to recover certain moneys due the plaintiff by the defendants because of a provision in said contract for the payment of
p. 119ten per cent, of the profits earned in the business of the defendants during the years 1887 and 1888. The plaintiff performed work, labor, and services for the defendants in and about the business of the defendants in the city of New York, and fully complied with the terms of said agreement on his part.” In these averments there is no allegation of any breach of conduct by the defendants, nor any allegation, either upon information and belief or otherwise, that any profits whatever were earned in the business of the defendants during the years in question. In the absence of such allegations the attempted statement of a cause of action is fatally defective; and the application of the plaintiff to examine the defendant is fairly subject to the criticism that it is merely an attempt, not to obtain information for the better statement of a known cause of action, but to find out whether he really has any cause of action at all. A party cannot be examined for this purpose. The order appealed from should be reversed, and the order of examination vacated, with $10 costs and disbursements.
Van Brunt, P. J., concurs.