206 A.D. 371 | N.Y. App. Div. | 1923
The plaintiff has commenced an action by the service of a summons and has been denied an examination of the defendant to enable the plaintiff to frame a complaint. The plaintiff in his affidavit upon which the application was based stated among other things that he and the defendant agreed to work together to find real estate satisfactory to a certain prospective purchaser and sell the same to him, any profits or commissions arising out of any sale or sales to that particular purchaser to be divided between them equally; that the parties entered upon the performance of the agreement and the plaintiff devoted much time and effort to the venture and fully performed the agreement on his part but that the defendant, while the joint venture was still in progress, succeeded in selling certain real estate to the prospective purchaser; and that the defendant had received or been promised large sums of money as consideration for procuring a purchaser or effecting the sale either by the purchaser or the former owner of the property, but that the plaintiff was ignorant of what compensation had been or was to be received by defendant and of the terms of all arrangements between the defendant and the purchaser.
The defendant by affidavit denied the alleged arrangement between the parties, admitted the sale of the property through his agency and alleged that he had received no cash and would not receive any until certain other transactions were closed. The defendant by affidavit also alleged that the transactions between
It is clear from this statement and in fact is conceded by both parties that the plaintiff’s affidavit sets forth facts which, if true, are sufficient to show' a liability on the part of the defendant to plaintiff and a right in the plaintiff to enforce this liability by an action in equity for an accounting. To frame a complaint in an action for an accounting no examination of defendant is necessary.
But the plaintiff correctly contends that he may also be entitled to maintain an action at law, depending upon facts of which he is ignorant, namely, whether or not the joint venture has been closed and the consideration for the efforts of the parties has been received by the defendant. (Felbel v. Kahn, 29 App. Div. 270; Burleigh v. Bevin, 22 Misc. Rep. 38.)
This being so, the principle is applicable that when the plaintiff has a cause of action against a defendant but lacks information as to the character of the cause of action he is entitled to examine the defendant in order to enable him to frame his complaint. (Heye v. American Chemical Eduction Co., 185 App. Div. 13; Kastner v. Kastner, 53 id. 293.)
The form of the action to be brought in this case is material, as on it will depend the right of the plaintiff to a jury trial.
The allegation of the defendant that he has received no cash as compensation does not justify the denial of plaintiff’s motion. The defendant may have received other compensation than cash. Even though the defendant’s statement be taken to mean that no consideration of any kind has been received by him, it does not justify the denial of the motion. The plaintiff may test the truth of the statement by oral questioning. (Klaw v. New York Press Co., Ltd., 151 App. Div. 720.)
That the examination will be disadvantageous to the purchaser is no sufficient reason for curtailing the plaintiff’s substantial rights.
The order should be reversed, with ten dollars costs, and motion granted.
All concur.
Order reversed, with ten dollars costs and disbursements, motion granted, and matter remitted to the Special Term to appoint a referee and fix the date of examination.
