106 N.Y.S. 865 | N.Y. App. Div. | 1907
The learned counsel for the appellant contends that the plaintiff failed to show by competent proof that he has a cause of action against the defendants and that, therefore,,the order was improperly granted.- If the plaintiff knew, all of the facts essential to be alleged to properly present his cause of action, an examination to' enable Mm to frame the complaint would be unnecessary and should not be ordered; bat, nevertheless, he must show by competent proof — and mere allegations upon information and belief, the sources of information and grounds of belief not being fully set out-, or conclusions drawn from facts not stated, are insufficient — that he has a cause of action and is entitled to some relief, although he may not know all of the facts upon which the precise nature of the relief to which he may be entitled is to be decided. (Code Civ. Proc. § 872, subd. 2; General Rules of Practice, rule 82; Grant v. Greene, 118 App. Div. 850; Hart v. Chase, 67 id. 445, 446; Thompson v. Best, 4 N. Y. Supp. 229; 51 Hun, 641; Goldmark v. U. S. Electro-Galvanising Co., 111 App. Div. 526, 529; Butler v. Duke, 39 Misc. Rep. 235; Muller v. Levy, 52 Hun, 123.)
it appeai-s tha'’ on the 9th day of .Hoyem.ber, 1899, the plaintiff’s intestate and the defendant Joseph H. Sulzbacher entered into a copartnership- agreement to carry on a banking and brokerage business in the city of New York under the name of J. H. Sulzbacher
“V. All other accounts (except, the ‘ Beserve Account ’ herein-before • provided in Paragraph III), current or otherwise, and the divers dealings in business which have been subsisting during the Continuance of the said copartnership between said parties' hereto as copartners, and-divers other persons, firms and corporations,-having been ascertained, adjusted and balanced, and. all the assets of the said copartnership firm of J. H. Sulzbacher & Company, as the-books ■ of said firm shall show on the closing thereof, including tl-ie New York Stock Exchange, seat standing in the name of the said Joseph-' IT. Sulzbacher, having been left in the hands* of the .said Joseph H. Sulzbacher,. to whom, all the interest of the said Ignatz Boskowitz in said assets is hereby assigned, and such assigned assets and- Stock Exchange seat being hereby accepted by said Joseph H. Sulzbacher as sufficient to pay, satisfy and discharge all the liabilities of said firm, he, the said Sulzbacher, hereby assumes .all the liabilities of the said copartnership, as the.books of said firm 'shall show on the closing thereof; said closing, shall be on'the-30th day of December, 1905, as . of the 31st day of Decémber,*881 1905; and the said Joseph H. Sulzbacher agrees to fully pay and discharge the said liabilities of the said firm, and to indemnify, hold harmless and discharge the said Ignatz Boskowitz from every and all such claims, liabilities and obligations whatsoever connected with, appertaining to or arising from, or growing out of the copartnership business of the said firm of J. H. Sulzbacher & Company, except, however, that if any lawsuit be commenced against said firm for any firm liability other than those assumed by said Joseph H. Sulzbacher, said Ignatz Boskowitz or said Joseph H. Sulzbacher, or both, may defend the same, and each shall contribute towards such defense, and towards any judgment or costs recovered therein against said firm, in proportion to their respective interests in said firm at the time such firm liability arose.
“ VI. The profits and losses of the said firm and the account of said Ignatz Boskowitz with the said firm as shown by the said closing of said firm’s books, having been ascertained and adjusted, and the balance found to be due him this day having been paid to him, and all the respective rights and interests 'of each of said parties hereto in said copartnership having been fully and finally settled and satisfied except as hereinbefore provided, now each of the parties hereto does for himself and his legal representatives mutually release and absolutely and forever discharge the other party hereto of and from all claims and demands, actions and causes of action, of every name, nature and description arising from or appertaining to or connected with said copartnership business, so that neither of them shall have any claim on the other, directly or indirectly, or any contract or liability or thing undertaken or omitted to be done, by reason of said copartnership relation, except as in this agreement hereinbefore provided.”
On the 26th day of December, 1906, Ignatz Boskowitz died, and ■plaintiff was thereafter duly appointed administrator of his estate. The administrator subsequently commenced an action against Joseph H. Sulzbacher, and on the 8th day of March, 1907, procured an order of the Supreme Court for an inspection of all of the books and papers of the firm, and they were delivered to him for that purpose. On the 8th day .of April, 1907, he likewise procured an order for the examination of the defendant in that action, to enable him to frame his complaint. After the examination, and on the
A motion to vacate an order for the examination of a party, unlike a motion to vacate a warrant of attachment, order of arrest or an injunction order, is not regulated by statute, and, unlike motions to vacate an order granting a provisional remedy, there is no statutory provision- authorizing the party who obtained the order to sustain it by additional affidavits -supplying omissions in the original papers. (2 Rumsey Pr. [2d ed.] 24; Code Civ. Proc. §§ 568, 627, 683.) Where the motion to vacate the order is made on- affidavits tending to controvert the - allegations of fact in the affidavits upon which.the order was granted, or to show that the order was obtained in bad faith, then the party who obtained the order may meet the application by additional affidavits setting forth facts showing his good faith aiid tending to-sustain the moving affidavits. (2 Rumsey Pr. [2d ed.] 24, 25.) In the case at bar the motion to vacate the order was made upon the papers upon which it was granted and upon the affidavit of the appellant and of his attorney, and a copy of the complaint, in .the action by plaintiff against Joseph TI. Sulzbacher. The affidavit of the attorney states ho material fact.' The affidavit of the appellant states facts tending to show that the order- was obtained in bad faith and for an ulterior purpose, and points out the insufficiency of the papers upon which the order was granted, but does not otherwise controvert any of the allegations thereof, excepting by the following general statement: “ For the reason that the -said Boskowitz nowhere sets forth' any particular facts in his affidavit, it is impossible for me specific
An order for the examination of a party may only be granted by a judge. (Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278.) Tire court being without authority to grant the order in the first instance, is without authority to receive evidence to remedy any material omission or defect in the moving papers upon which the order was granted. The order for the examination was made upon the summons, proof of service thereof, on the affidavit of one of the attorneys for th¿ plaintiff setting forth that “ from the statement of the case in this action made to deponent by the plaintiff, deponent verily believes that the plaintiff has a good and substantial cause of action upon the merits ” and that the examination is material and necessary to enable plaintiff to frame his complaint and to prosecute the action, and upon the affidavit of the plaintiff. The affidavit of the plaintiff shows that the appellant is brother to the defendant Joseph H. Sulzbacher and was for many years employed by the firm as manager of its branch office, and that he thinks and believes from an examination of the books of the firm and from the examination of Joseph H. Sulzbacher in the action previously brought against the latter, that appellant through fraud and collusion and deception, received and appropriated to his own use or to the use of others, without the knowledge or consent of plaintiff’s intestate, moneys properly belonging to the firm or for which he was account
It may also be observed, without definitely deciding the question that it is doubtful whether, if a cause of action existed in favor of the firm against the appellant, the plaintiff could maintain an action to enforce it. The cause of action, if any existed, passed to Joseph H. Sulzbacher whether under the dissolutipn agreement or as surviving partner, and he alone may maintain the action unless perhaps upon the theory that he participated in the fraudulent acts which give rise to the cause of action. (Williams v. Whedon, 109 N. Y. 333; Secor v. Tradesmen's National Bank, 92 App. Div. 294; Matter of Thieriot, 117 id. 686; Simpsons v. Simpson, 44 id. 492; Kastner v. Kastner, 53 id. 293; Russell v. McCall, 141 N. Y. 437.) The cause of action, if any there be, existed at the time of the dissolution of the firm and is not based on any proceedings of Joseph H. Sulzbacher either under the dissolution agreement or as surviving partner. There are general charges of collusion on the part of Joseph H. Sulzbacher with respect to some of the alleged fraudulent acts of the appellant but the facts are not stated.
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion to vacate the order for examination granted, with ten dollars costs.
Patterson, P. J., Clarke and Houghton, JJ., concurred; Ingraham, J., concurred in result.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs,