New York County NyArchives Court.....Miller, John Vs. Bernard Levy 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

JOHN MILLER, Respondent, v. BERNARD LEVY, Appellant, Impleaded with ISAAC I. 
LEVY.

Examination of a defendant sought to enable the plaintiff to frame his 
complaint — the affidavits must show that a cause of action exists.

A statement in an affidavit, made for the purpose of obtaining an order for the 
examination of a party defendant before trial, that the action was brought upon 
a written contract of employment of the plaintiff by the defendants to recover 
certain moneys due the plaintiff thereunder, because of a provision thereof by 
which the plaintiff was to receive ten per cent of the profits earned, and that 
the plaintiff had performed work thereunder for the defendants, but containing 
no allegation of a breach of contract by the defendants, nor to the effect that 
any profits were earned in the business of the defendants, does not show the 
existence of a cause of action; its existence must be affirmatively established 
on an application for an examination of a defendant before trial made for the 
purpose of enabling the plaintiff to frame his complaint.

Appeal by the defendant Bernard Levy from an order made at a Special Term of the 
Supreme Court in the county of New York, and entered in the clerk's office of 
said county on or about February 9, 1889, requiring the said Bernard Levy to 
appear before one of the justices of the said court and submit to an examination 
concerning the matters alleged in the affidavit of the plaintiff in this 
proceeding, brought for the purpose of enabling the plaintiff to examine the 
defendant with a view to framing his complaint in this action.

Wales F. Severance, for the appellant.

Z. S. Sampson, for the respondent.

Bartlett, J.:

When a plaintiff, for the purpose of framing his complaint, obtains an order for 
the examination of a defendant before trial, he must establish by affidavit the 
existence of a cause of action in his behalf. We have recently had occasion 
frequently to enforce this rule, and must reiterate it once more in the case at 
bar. The affidavit upon which the order for the examination of the defendant 
Bernard Levy was granted, does not state facts sufficient to show that a cause 
of action exists in favor of the plaintiff.

The only averments which it contains tending to establish a cause of action are 
as follows: "The action is brought upon a written contract of employment, by the 
defendants, under the firm name of Bernard Levy & Co., of the plaintiff, for the 
years 1887 and 1888, and is to recover certain moneys due the plaintiff by the 
defendants, because of a provision in said contract for the payment of ten per 
cent of the profits earned in the business of the defendants during the years 
1887 and 1888. The plaintiff performed work, labor and services for the 
defendants in and about the business of the defendants in the city of New York, 
and fully complied with the terms of said agreement on his part."

In these averments there is no allegation of any breach of contract by the 
defendants, nor any allegation, either upon information and belief, or 
otherwise, that any profits whatever were earned in the business of the 
defendants during the years in question. In the absence of such allegations the 
attempted statement of a cause of action is fatally defective, and the 
application of the plaintiff to examine the defendant is fairly subject to the 
criticism that it is merely an attempt, not to obtain information for the better 
statement of a known cause of action, but to find out whether he really has any 
cause of action at all. A party cannot be examined for this purpose.

The order appealed from should be reversed and the order of examination vacated, 
with ten dollars costs and disbursements.

Van Brunt, P. J., concurred.

Order reversed and order of examination vacated, with ten dollars costs and 
disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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