Churchman v. Merritt — 21 N.Y. St. Rep. 729

Majority

p. 729

Anna E. Churchman, Resp’t, v. Hannah B. Merritt, App’lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

1. Discovert—Order for, when made.

Orders for discovery are not made as matters of course. It is necessary to show to the court that such order is requisite to protect or enforce some right of the plaintiff.

3. Same—When will not be granted.

An order for discovery will not he granted when the motion papers do not disclose the facts upon which the plaintiff’s cause of action. is founded.

Appeal by the defendant from an order of discovery.

M. P. Stafford, for app’lt; J. E. Chandler, for resp’t.

The principal objection taken to the ■order is, that the affidavit upon which it is founded states no facts from which the court can see that the plaintiff has a cause of action.

This objection seems to be entirely well taken. The only allegation from which the nature of the cause of action can be inferred is as follows: “That this action is brought to reform two written instruments, to wit, first a mortgage * * * and second the bond secured by said mortgage. The complaint will ask for an injunction, and for other equitable relief.”

In what respect the bond and mortgage is to be reformed we are entirely at a loss to conceive; whether upon the ground of fraud or mistake, we are left entirely in the dark. And this is the only allegation we have been able to discover in these papers, that the plaintiff has any cause of action against the defendant.

This is entirely insufficient. There must be something to show that the plaintiff has some ground of complaint .against the defendant. There is nothing here alleged of in

p. 730

firmity in this bond and mortgage, and nothing from which we can judge that any cause of action under any possible circumstances could exist in favor of the plaintiff.

Orders for discovery are not made as matters of course. It is necessary that the court should see that to protect or enforce some right of the plaintiff such discovery is requisite. In this affidavit we are not informed of any right of the plaintiff that has been infringed, as far as her right -to a reformation of this instrument is concerned, and that is the avowed purpose for which this action is brought. The bare statement of the proposition seems to be sufficient. ' to show that upon the mere naked allegation that this action is brought to reform a bond and mortgage, without alleging any infirmities in the instruments themselves, and without alleging whether the reformation is sought upon the ground of fraud or mistake, or anything showing that the plaintiff has any ground of belief that she has any cause of action for any such purpose, an order of discovery should not be made, and this extreme process of the court invoked.

The order should be reversed, with ten dollars costs and disbursements.

Bartlett and Daniels, JJ., concur.