47 N.Y.S. 557 | N.Y. App. Div. | 1897
This action was brought, to recover a sum of over $11,000 alleged to have been received by the defendant to the use of the plaintiff. The answer denied' the allegations of the conrplaint except as to demand ; and as a separate and distinct defense averred that whatever moneys were paid by the plaintiff to the defendant were paid to the defendant as banker and broker acting on behalf of the plaintiff for the purchase and sale of various stocks for him, and that during "the periods mentioned in the complaint various moneys were paid and stocks delivered tó the plaintiff, which moneys so paid and stocks so delivered were received by the plaintiff from the defendant and accepted by the plaintiff in full settlement of all accounts between' them. ' The defendant for a further defense averred that prior to the commencement of the action all accounts by and between the plaintiff and the defendant had been fully settled and that all moneys which the plaintiff was entitled.to had been fully paid. For a further defense and as a counterclaim to the plaintiff’s cause of action, the defendant averred that at various times between July 5,1895, and December 4, 1895, the defendant, acting as banker and broker on behalf1 of the plaintiff, made various purchases and sales on -account of the plaintiff, during which transactions the defendant was compelled to and did advance moneys to meet orders both for the- sale and purchase of stocks, etc., as ordered by the plaintiff, and that on or about December 4, 1895, by reason of these various purchases and sales, the plaintiff became and was indebted to the defendant in the sum of $347.78, no part of which has been paid. . The'plaintiff, replying to the counterclaim, put in a general denial.
An application was then made upon the affidavit - of the plaintiff for an order for the examination of the defendant, which was granted. All the averments in the affidavits, except as to the
It is apparent that none of the rules whicli have been so frequently laid down with respect to the examination of -a party before trial were coinplied with in the affidavit upon which the order was granted. All the information which it is alleged that the plaintiff sought by such examination could have been obtained by a bill of particulars. All the allegations in the affidavits, as before stated, except those relating to the nature of the cause of action and the defenses, are upon information and belief,- with no statement whatever of any sources of information or ground of belief. Averments of this description in an affidavit have been too frequently held to be a nullity to need the citation of authorities here. So far as these papers disclose, it would seem that the sole object of the plaintiff in this application is to ascertain whether he had a cause -of action or not.
We think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Barrett, Rumsey, Williams and Patterson, JJ., concurred. '
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. ■
