58 N.Y.S. 907 | N.Y. App. Div. | 1899
The order for examination was granted upon the affidavit of Frederick A. Anthony, the secretary and treasurer of the applicant corporation. The affidavit states that, “ An. action will be brought by the said E. & H. T. Anthony & Company against either the Lovell Dry Plate Company or the Lovell Dry Plate Manufacturing Company, according to the facts that may be elicited upon the examination now applied for.” It then proceeds to state the nature of the expected controversy as 'follows: That in September, 1896, a contract was entered into between the applicant corporation and three persons, including. Lovell, who were doing business under the name of the Lovell Dry Plate Company, constituting the applicant
. It is entirely clear that upon these facts the applicant was not entitled to the order here granted: It was held, and we think correctly, in Matter of Bryan (3 Abb. N. C. 289) that a witness cannot be examined under sections 871 to 876 of Code of Civil Procedure for the purpose of enabling a plaintiff to frame a complaint in an action which he has not yet commenced. Under such circumstances the testimony of a witness, may undoubtedly be perpetuated. The applicant here asserts that the application is made to preserve the witness’ testimony as well as to enable it to frame its complaint. But plainly the latter is the real purpose. If, however, Mr. Lovell be treated, not as a witness, but as a party — he being the manufacturing company’s secretary — the order was equally iniprov-ident. It was said in The Merchants’ National Bank v. Sheehan (101 N. Y. 176) that while sections 870 and 876 of the Code of Civil Procedure authorize the granting of an order, before an action has actually been commenced, for the examination of a person against whom such an action is about to be brought, yet the cases
Here the applicant has not stated a single fact tending to show that it has a cause of action against the- manufacturing company. It has stated facts tending to show a cause of action against the individuals with whom it contracted, and also against the plate company which assumed that contract. So far as these persons and this corporation are concerned, it needs no examination to enable it to frame its complaint. So fan, however, as the manufacturing company is concerned, it states only its suspicions, or facts indicating the mere possibility of a cause of action. As to this latter con> pany, it seeks the examination, not to enable it to frame its com-, plaint, but to ascertain whether it has any cause of complaint. It is well settled that this cannot be done, either before or after the commencement of an- action. We quite agree with the manufacturing company appellant that the proposed defendant must be definitely, and not tentatively, named in the affidavit (Code Civ. Proc. § 872); and that it must also be made to appear that the applicant has a cause of action against such specific person. (De Leon v. De Lima, 66 How. Pr. 287; Muller v. Levy, 52 Hun, 123.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for Mr. Lovell’s examination granted, with ten dollars costs.
Yan Brunt, P. .1., Rumsbv, Patterson and O’Brien, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.