
    Joseph Marrone, Resp’t, v. The New York Jockey Club, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 17, 1891.)
    
    Discovert—Breach of contract.
    Plaintiff entered into a written contract to excavate rock on defendant’s grounds according to a certain profile and survey at a certain price per cubic foot, but the contract was not drawn in defendant’s name, nor did it provide that plaintiff should do all the excavating called for by the profile and survey. In an action for breach of the contract in stopping the work before all the rock shown in such profile and survey was removed, Held, that plaintiff did not show that he had a cause of action against the defendant and was not entitled to an inspection of the profile and survey to enable him to frame his complaint. , •
    
      Appeal from order of special term, granting a motion for discovery to enable plaintiff to frame his complaint.
    It appeared that plaintiff had entered into a contract with the Westchester Jockey Club, which name it is claimed was used by mistake for defendant’s, by which he was to be paid a certain sum per cubic foot for blasting and excavating rock on defendant’s premises as required by a certain profile and survey. After he had performed work thereunder for several months he was stopped and told that there was no more work to be done under the contract. Plaintiff then brought this action for breach of contract, and sought an inspection of the profile and survey to enable him to frame his complaint.
    
      Alfred B. Cruikshank, for app’lt; John J. Joyce, for resp’t.
   Van Brunt, P. J.

The difficulty with the plaintiff's application is, that he does not show that he has a cause of action.

He not only does not show that he has a cause of action against the defendant, but he fails to set out a cause of action against anybody. Hot only was the contract in writing, but under seal, but in the name of a party other than the defendant And there is no agreement therein contained that the party contracting with the plaintiff shall allow the plaintiff to do all this work. The plaintiff contracts to take out rock, etc., and the other party contracts to pay him a certain price for what he does take out and nothing more.

It is conceded that the plaintiff has been paid for all work done, and this action is brought to recover damages for not being allowed to do more. As there was no obligation to give the plaintiff more to do, its refusal could not give rise to an action for damages sustained by such refusal.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied.

Daniels, J.

I concur, also, on the ground that the discovery does not appear to be necessary to enable the plaintiff to frame a complaint. If the contract was in fact made by the defendant, and it has refused to permit its performance, the plaintiff has all the knowledge that can be required to allege his cause of action, as he may state the quantity of stone yet to be excavated large enough to fully meet his claim as it may appear on the trial

Lawrence, J., concurs.  