
    Moses Tanenbaum, Respondent, v. Thomas B. Whiffen, Appellant.
    
      Examination of a defendant before trial to enable the plaintiff to frame his complaint—: denied in a case where nominal damages only cure recoverable.
    
    An order directing the examination of a defendant to enable a plaintiff to frame his complaint should not be granted, where the affidavit upon which the application therefor is made shows that if the plaintiff, who alleges a cause of action for a breach of contract by the defendant, should allege in his complaint all the information sought to be obtained by such examination, together with what he already has, he would not be entitled to recover more than nominal damages for a technical violation of the contract.
    Appeal by the defendant, Thomas B. Whiffen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of May, 1899, denying his motion to vacate an order for his examination before trial.
    
      Harold Nathan, for the appellant.
    
      Benno Loewy, for the respondent.
   McLaughlin, J.:

This is an appeal from an order denying a motion to vacate an order directing the -examination of the defendant for the purpose of •enabling the plaintiff to frame his complaint. The order for the examination is based upon plaintiff’s affidavit, which shows that the action is brought to recover damages for the breach of a contract by which the defendant agreed in substance with the plaintiff’s assignor that he would not lease the whole or any part of certain premises located in the city of New York, except upon the condition that the tenants and under-tenants should, at the time of the leasing, enter into a written agreement with the plaintiff’s assignor to the effect that they would place all their insurance affecting the contents of the premises leased with him at a certain specified price; that, in violation of this contract, the defendant did let a part of the premises to tenants and under-tenants without exacting from them any contract regarding insurance as he had agreed to do, and that by reason thereof the premises were occupied by such tenants and under-tenants, who had merchandise, furniture and fixtures, all of which were insurable, and that they did not procure from the plaintiff’s assignor any insurance thereon, by reason of which the plaintiff lost the profits and commissions that would have been earned if such insurance had been so procured.” The plaintiff further alleges in this affidavit that he knows, by admissions of the defendant and otherwise, that the premises were occupied by tenants during the time specified, and that “ insurable property was upon such premises which was not covered by insurance ” obtained from the plaintiff’s assignor, but that he is unable to state the “ names of the different tenants or under-tenants in' said premises, the particular times dialing which the same were occupied by such tenants or under-tenants, and the amount of insurable property in the said premises upon which insurance was not procured through ” the plaintiff’s assignor, and he asks that he be permitted to examine the defendant with reference to these facts for the purpose of enabling him to frame a complaint.

An order of this kind ought not to be granted and a party put to the trouble, annoyance and expense of an examination, unless it be first made to appear that the facts sought to be ascertained, if set forth in a proper complaint in connection with the facts within the knowledge of the plaintiff, would entitle him to relief in the form of substantial damages. Here, if the plaintiff alleged in a complaint all the information which he seeks to obtain, together with what he already knows, he would not then he entitled to anything more than, nominal damages, if that. He does not state that the defendant agreed that the tenants to whom the premises should be leased would place insurance with his assignor. All he claims is that the insurance which should be procured by these tenants should be-obtained from his assignor; but he does not allege or even suggest, in his affidavit that any of the tenants have placed any insurance-with any person upon any of the property. Therefore, if the plaintiff had all the information which he says he desires, it would be. of no advantage to him, because there would be nothing to ^how that the tenants ever procured any insurance whatever. He would simply obtain the names of the persons to whom the plaintiff had leased the premises, and the insurable property they had. In the absence-of proof showing, that insurance had been taken out by the tenants, or. some of them, it is clear that the plaintiff would not be entitled to anything more than nominal damages for a technical violation of the contract referred to. The examination sought, therefore, would serve no good purpose, and it follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs. .

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  