
    Churchman v. Merritt et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    Witness—Examination before Trial—Sufficiency of Affidavit.
    Under Code Civil Proc. if. Y. § 872, subd. 2, providing that, where an action is pending and an order for the examination of a party before trial is sought, the moving affidavit must show the nature of the action, an order of discovery will not be granted to a plaintiff on an affidavit which alleges that the action is brought for the reformation of certain written instruments, but does not allege in what respects such instruments are infirm, or whether the reformation is sought upon the ground of fraud or mistake.
    Appeal from special term, Hew York county.
    Action by Anna E. Churchman against Hannah P. Merritt and others. From an order for the examination of defendants before trial, and also from a decision refusing to vacate such order, the defendants appeal.
    Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.
    
      M. P. Stafford, for appellants. J. E. Chandler, for respondent.
   ON APPEAL FROM ORDER OF DISCOVERY.

Van Brunt, P. J.

The principal objection taken to the order is that the affidavit upon which it is founded states no facts from which the court can see that the plaintiff has a cause of action. This objection seems to be entirely well taken. The only allegation from which the nature of the cause of action can be inferred is as follows: “ That this action is brought to reform two written instruments, to-wit: Eirst, a mortgage; * * * and, second, the bond secured by said mortgage. The complaint will ask for an injunction, and for other equitable relief.” In what respect the bond and mortgage is to be reformed, we are entirely at a loss to conceive; whether upon the ground of fraud or mistake, we are left entirely in the dark, and this is the only allegation we have been able to discover in these papers that the plaintiff has any cause of action against the defendant. This is entirely insufficient. There must be something to show that the plaintiff has some ground of complaint against the defendant. There is nothing here alleged of infirmity in this bond and mortgage, and nothing from which we can judge that any cause of action, under any possible circumstances, could exist in favor of the plaintiff. Orders for discovery are not made as matters of course. It is necessary that the court should see that to protect or enforce some right of the plaintiff such discovery is requisite. In this affidavit we are not informed of any right of the plaintiff that has been infringed as far as her right to a reformation of this instrument is concerned, and that is the avowed purpose for which this action is brought. The bare statement of the proposition seems to be sufficient to show that upon the mere naked allegation that this action is brought to reform a bond and mortgage, without alleging any infirmities in the instruments themselves, and without alleging whether the reformation is sought upon the ground of fraud or mistake, or anything showing that the plaintiff has any ground of belief that she has any cause of action for any such purposé, an order of discovery should not be made, and this extreme process of the court invoked. The order should be reversed, with $10 costs and disbursements.

ON APPEAL FROM REFUSAL TO VACATE ORDER OF DISCOVERY.

Bartlett, J.

The avowed purpose of the examination which has been ordered in this case is to enable the plaintiff to frame her complaint. That the provisions of the Code of Civil Procedure relating to the examination of parties before trial authorize a plaintiff to examine a defendant for this purpose was established by the decision in Glenney v. Stedwell, 64 N. Y. 120. But the right of a plaintiff thus to obtain discovery of facts which he desires to allege in his complaint is conditioned upon his showing that he has a cause of action against, the defendant. Such was the rule in chancery, and such is the rule under the Code. It was essential to a bill of discovery, iñ equity, that the bill should set forth with reasonable certainty the nature of the suit which had been brought, (Story, Eq. PL § 321;) and under our present system of procedure, if an action is pending, the nature of the action, and the substance of the judgment demanded, must be stated in the moving affidavit, (Code Civil Proc. § 872, subd. 2.) In the present case, the plaintiff swears that this action “has been brought to reform and correct a certain mortgage given by the defendant Hannah B. Merritt to the defendant Edward H. Brown, ” as trustee of the plaintiff, upon certain leasehold premises, Ho. 131 William street, in the city of Hew York. There is nothing in the papers to show whether any error or informality in the mortgage, or any omission therefrom, was due to fraud or mutual mistake, or to indicate what the plaintiff claims or supposes the facts to be in regard to the execution and delivery of the instrument. The plaintiff says she has been advised by her counsel that the mortgage is not a sufficient and good security for the $25,000 it purports to secure. She also states, on information and belief, that her trustee, the defendant Edward H. Brown, was in a precarious condition of health before she received the mortgage from him, and that he has since been under restraint for mental ailments; and she denies any knowledge as to how, or under what circumstances, he was induced to take “such an extraordinary instrument as security for the loan of so large a sum of money. ” It seems that the defendant George Merritt acted as agent for the defendant Hannah Merritt in making the mortgage, and the plaintiff further says that she is unable to state whether the present condition of the bond and mortgage is due to a mutual mistake, or whether her trustee labored under a mistake in regard to “certain facts touching the value of the mortgage in question, ” which the defendant George fraudulently took advantage of, to her prejudice. There are no specifications as to these “certain facts,” unless they be found in the criticisms made upon the mortgage by the counsel for the appellant. These are—First, that the description of the premises is meager, and in his judgment defective; secondly, that the mortgage contains no covenant of any kind requiring any insurance to be kept upon the property; and, thirdly, that there is no covenant on the part of the mortgagor to pay taxes. The absence of these covenants renders the mortgage, in his opinion, a doubtful security. Their omission from the instrument, however, does not of itself warrant any inference of fraud or mistake, nor does the plaintiff undertake to say that they were fraudulently or mistakenly left out. Erom the statements which have been mentioned, and others contained in the moving papers, it would seem that the plaintiff’s real purpose in the examination of the defendant is not to obtain knowledge of facts which will facilitate the statement of a known and ascertained cause of action, but is rather to find out whether any cause of action whatever really exists in her behalf against these defendants, or any of them. Under these circumstances an examination of a defendant before trial is not authorized by the statute. To sanction it would be to permit investigations of the most harassing character, and give rise to a practice liable to grave abuse. Where a suit is brought to reform a written instrument, it is not a sufficient compliance with that provision of the Code which requires that the nature of the action shall be stated, as a prerequisite to an order for the examination of a party before trial, merely to state that the purpose of the action is to reform a deed or mortgage, or other paper, as the case may be; but the grounds upon which relief is sought should be indicated with reasonable certainty. The affidavits upon which the present application is based seem to us insufficient in this respect, and the order should therefore be reversed, with costs, but without prejudice to another application upon papers setting forth a cause of action. All concur.  