Kirkland v. Moss

| The Superior Court of New York City | Nov 15, 1882

Truax, J.

The plaintiff seeks to examine the defendant for the purpose of showing that he, the defendant, acted as principal, and not as the agent of one Wallack, as alleged by the defendant in his answer. The allegation in the moving papers, is that the “ plaintiffs desire to examine the defendant to prove that he had an agreement with the proprietor of the said premises .... by which he had full power and authority to make the contract alleged in the complaint on his sole responsibility, and by which he had an interest in the said premises.” This allegation is not sufficient. There is no allegation that there was any such agreement. The moving affidavit simply alleges that the plaintiffs desire to prove there was such an agreement, which means they desire to prove their case if they can.

Order vacated, with costs.