Summary
In Matter of Anthony Co. (42 App. Div. 66) this construction was given to these sections of the Code of Civil Procedure.
Summary of this case from Matter of Ellett v. YoungOpinion
June Term, 1899.
Louis Wertheimer, for the appellant.
Charles C. Nott, Jr., for the respondent.
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 their exclusive sales agent, and providing for its commissions; that thereafter the Lovell Dry Plate Company (hereafter called the plate company) was incorporated under the laws of the State of Maine, and assumed the contract; that in the fall of 1898 the Lovell Dry Plate Manufacturing Company (hereafter called the manufacturing company) was incorporated under the laws of the State of New York, and that since then the contract has been broken by both companies; that since the manufacturing company started business the plate company has ceased to do business, although it has not been legally dissolved; and that it has its office in the same building with the manufacturing company, which latter company has apparently succeeded to its business and assets. The affidavit further states that the officers of the applicant are all ignorant as to whether the manufacturing company has succeeded to the contract obligations of the plate company, and are also ignorant of the relations between the two companies and those having contracts with them. The affidavit concludes with the statement that the application is made to enable the applicant to frame its complaint in the action which it proposes to bring, and that such action will be brought against whichever company the facts elicited on the examination indicate is liable.
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 improvident. 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 are rare when justice will be promoted by granting it; "and the practice, unless carefully guarded, may lead to great abuses."
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 far, 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 company, it seeks the examination, not to enable it to frame its complaint, 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.
VAN BRUNT, P.J., RUMSEY, PATTERSON and O'BRIEN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.