Dalzell v. Fahys' Watch Case Co. — 32 N.Y. St. Rep. 96

Majority

p. 96

Allan C. Dalzell, Resp’t, v. The Fahys’ Watch Case Co., App’lt.

(New York Superior Court, General Term

Filed May 5, 1890.)

Headnote

"1. Examination before trial — Affidavit.

To entitle a plaintiff to an order for the examination of the defendant before joinder of issue, he is hound to show that such examination is material, and necessary to enable him to frame his complaint.

3. Same.

The affidavit for the order alleged an agreement by defendant to manufacture under a patent for joint account with plaintiff; that it did manufacture, and nowrefuses to account or pay over plaintiff’s share of the profits. Held., that as plaintiff had sufficient facts for framing a complaint, he failed to establish any necessity for the order, and it should not have been granted.

Appeal from order denying defendant’s motion to vacate an order for the examination of defendant’s officers and books.

The affidavit for the order alleged that the action is brought to recover damages for breach of a contract dated April 21, 1886, made by plaintiff with defendant in writing, whereby plaintiff agreed to, and did thereafter, assign unto said defendant certain letters patent, and defendant agreed to manufacture and sell for joint. account of this plaintiff and defendant the commodities covered by said letters patent, and to pay over to this plaintiff the equal moiety of net profits ; that the defendant did, as deponent is informed, verily believes and alleges, manufacture under said agreement, and the letters patent, so as aforesaid by this plaintiff assigned, large quantities of said commodities, and, they so being the joint property of this plaintiff and defendant, the defendant has disposed of them in some way, but, as deponent verily believes, at a substantial profit, and now neglects and refuses to account thereof and of the disposition of said common property, and pay over the proportion of net profits as agreed; that the substance of the judgment demanded is damages for the breach aforesaid, measured by the amount found due therefor upon the final determination of this action. It also stated that the examination of defendant’s officers and its books was material and necessary to enable plaintiff to ascertain the disposition by

p. 97

■defendant of the joint property, and the method thereof, and if by sales, the names of the persons concerned therein, the character of the sales, and the terms thereof.

Wetmore & Jenner (Wm. A. Jenner, of counsel), for app’lt; Wilber & Oldham (S. W. Fullerton, of counsel), for resp’t.

This is an appeal from an order denying defendant’s motion to vacate an order granted ex parte for the examination of defendant’s officers and books before service of the complaint.

The motion was made:

1. Upon the alleged indefiniteness and insufficiency of plaintiff’s .affidavit, and

2. Upon affidavits and exhibits showing cause against the ■order.

The power of the court to vacate the order for either of the reasons stated cannot be questioned. Levy v. Loeb, 44 N. Y. Supr. Ct., 12 J. & Sp., 291; affirmed, 75 N. Y., 609 .

The plaintiff obtained the order before service of a copy of • the complaint, and consequently he was bound to show that at that stage of the case the examination was material and necessary to enable him to frame his complaint The object of allowing the examination to be had before the joinder of issue is not to enable the plaintiff to ascertain whether he has a cause of action, but to enable him to elicit material facts necessary to be incorporated into the statement of the cause of action which he has.

A careful inspection of the record shows not only that the •plaintiff’s affidavit, even if barely sufficient in the first instance, was very indefinite, but, also, that the plaintiff had sufficient facts ior framing a complaint based upon defendant’s refusal to account and that he failed to establish any necessity for the order of examination. The case as presented by the affidavits and exhibits of the defendant called upon the court to see to it that the plaintiff should establish the good faith of his application and the materiality and necessity of the examination for the purpose of framing a complaint This the plaintiff failed to do, and consequently the order should have been vacated, and not merely modified as to the books.

The order appealed from should be reversed and the order of examination vacated, with ten dollars costs of the appeal and disbursements to be taxed, and ten dollars costs of motion.

Sedgwick, Ch. J., and O’Gorman, J., concur.