18 N.Y.S. 847 | New York Court of Common Pleas | 1892
Joseph Fatman, father of both plaintiff and defendant, died in October, 1869. He was then a member of the firm of Fatman & Co., of Hew-York city. By his will he directed his executor to represent his interests in said copartnership, and, to all intents and purposes, carry out said copartnership in the same manner as though the testator were living, during the period provided for in the articles of copartnership, and that the said
It is insisted by the defendant that the affidavit was wholly insufficient to justify an order for the examination of the defendant. There is no force in this contention. The affidavit upon which the order was made contains, in addition to the' matters above stated, the statement that the plaintiff has no knowledge nor any source of information, excepting the testimony of the defendant and the other copartners of said Joseph Patman, deceased, as to what were the terms, provisions, and conditions of the said articles of copartnership, oral or written; nor as to who were copartners of the said Joseph Pat-man in the said firm at the time of his death; nor what was the extent of the
The second objection to the order is that the affidavit fails to show that the plaintiff has a cause of action, either legal or equitable. Even assuming, for the purposes of the argument, that this is so, the general rule does not apply to a case of this character. Carter v. Good supra. But it is not necessary that the affidavit should state a complete cause of action; it is sufficient if the nature of the action is stated, and the substance of the judgment demanded. Froihingham v. Railroad Co., 9 Civil Proe. R. 304, 314, Van Brunt, J.; Videtto v. Dudley, (Super. N. Y.) 4 N. Y.,Supp. 437; Heishon v. Knickerbocker Co., supra. The moving papers in the case at bar contain these prerequisites.
The third objection is that the examination of the defendant is not necessary to enable the plaintiff to frame his complaint. A question similar to the one now presented by this objection was raised by the first objection, which has been already considered and disposed of, and the answer thereto might suffice for a complete answer to the objection now raised. But, in passing upon the precise-point involved, it is well to consider that, while the plaintiff may be entitled! to a share in his father’s estate, he is not in a condition in which he can legally state his case, entitling himself to any relief of that description. For the-information requisite for that purpose he is wholly dependent upon the defendant, who, it seems, within three months after the testator’s death, and. before his inventory was filed, became a member of the firm, which, by the terms of his father’s will, he was directed to continue and preserve; and without the information there is reason to believe that the action could not be placed in the legal form adapted to the relief which the plaintiff is entitled to-upon the facts, as he may ultimately be able to establish them in the suit. The plaintiff is therefore entitled to the order to enable him to prepare a. complaint. Davis v. Stanford, supra; Raymond v. Brooks, supra; Tucker v. Mather, 23 Wkly. Dig. 455; Heishon v. Knickerbocker Co., supra.
This brings us to the next objection, that it is doubtful whether the plain—