Muller v. Levy — 59 N.Y. Sup. Ct. 123

Majority

p. 123

JOHN MULLER, Respondent, v. BERNARD LEVY, Appellant, Impleaded with ISAAC I. LEVY.

Headnote

Examination of a defendant sought to enable the plaintiff to frame his complaint■— the affidavits must show that a eause of aetion exists.

A statement in an affidavit, made for the purpose of obtaining an order for the examination of a party defendant before trial, that the action was brought upon a written contract of employment of the plaintiff by the defendants to recover certain moneys due the plaintiff thereunder, because of a provision thereof by which the plaintiff was to receive ten per cent of the profits earned, and that the plaintiff had performed work thereunder for the defendants, but containing no allegation of a breach of contract by the defendants, nor to the effect that any profits were earned in the business of the defendants, does not show the existence of a cause of action; its existence must be affirmatively established on an application for an examination of a defendant before trial made for the purpose of enabling the plaintiff to frame his complaint.

Appeal by the defendant Bernard Levy from an order made at a, Special Term of the Supreme Court in the county of New York, and entered in the clerk’s office of said county on or about February 9,. 1889, requiring the said Bernard Levy to appear before one of the justices of the said court and submit to an examination concerning the matters alleged in the affidavit of the plaintiff in this proceeding, brought for the purpose, of enabling the plaintiff to examine the, defendant with a view to framing his complaint in this action.

Wales F. Severance, for tlie appellant.

Z. 8. Sampson, for the respondent.

When a plaintiff, for the purpose of framing his complaint, obtains an order for tbe examination of a defendant before trial, be must establish by affidavit tbe existence of a cause of action in bis behalf. We have recently bad occasion frequently to enforce this rule, and must reiterate it once more in tbe case at bar. Tbe affidavit upon which tbe order for tbe examination of tbe defendant Bernard Levy was granted, does not state facts sufficient to show that a cause of action exists in favor of tbe plaintiff.

The only averments which it contains tending to establish a cause of action are as follows: “ Tbe action is brought upon a written •contract of employment, by tbe defendants, under tbe firm name of Bernard Levy & Oo., of tbe plaintiff, for tbe years 1887 and 1888, and is to recover certain moneys due tbe plaintiff by tbe defendants, because of a provision in said contract for tbe payment of ten per cent of the profits earned in tbe business of the defendants during tbe years 1887 and 1888. Tbe plaintiff performed work, labor and .services for tbe defendants in and about the business of tbe defendants in tbe city of New York, and fully complied with tbe terms of «aid agreement on bis part.”

In these averments there is no allegation of any breach of contract by tbe defendants, nor any allegation, either upon information and belief, or otherwise, that any profits whatever were earned in ■the business of tbe defendants during tbe years in question. In tbe .absence of such allegations tbe attempted statement of a cause of .action is fatally defective, and tbe application of tbe plaintiff to ■examine tbe defendant is fairly subject to the criticism that it is merely an attempt, not to obtain information for tbe better statement of a known cause of action, but to find out whether be really has any cause of action at all. A party cannot be examined for this ■purpose.

Tbe order appealed from should be reversed and tbe order of ■•examination vacated, with ten dollars costs and disbursements.

Yak Brunt, P. J., concurred.

Order reversed and order of examination vacated, with ten dollars ■costs and disbursements.