
    John Muller, Resp’t, v. Bernard Levy et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    Examination before trial—Affidavit must establish existence of CAUSE OF ACTION.
    A plaintiff, on obtaining an order for the examination of a defendant before trial, for the purpose of framing his complaint, must establish by-affidavit the existence of a cause of action in his behalf.
    Appeal from special term order denying motion to vacate-order for the examination of the defendant Bernard Levy before trial.
    
      Wales F. Severence, for app’lts; Z. S, Sampson, for resp’t.
   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 Kew York, and fully complied with the terms of said agreement on his part.”

In these averments there is no allegation of any breach of conduct 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, Oh. J., concurs.  