9 N.Y.S. 713 | The Superior Court of the City of New York and Buffalo | 1890
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. Super. Ct. 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