
    William C. Merritt, Respondent, v. John D. Williamson, Appellant, Impleaded with Others.
    
      Action f'or commissions on procuring a construction contract — when an examination of a defendant is unnecessary for the preparation of the complaint.
    
    An affidavit made by the plaintiff in an action in which it is.alleged that his assignor procured for the defendants, at their request, a contract for the construction by them for a construction company of a part of the line of a proposed railroad; that the services thus rendered were to be paid for by a reasonable compensation, in excess of the usual brokers’ commissions, and that, although this compensation had been demanded, it had not been paid, does not authorize the granting of an order for the examination of one of the defendants for the purpose of enabling the plaintiff to prepare his complaint, as it is apparent that the plaintiff already has sufficient information to enable him to state the facts which constitute his cause of action.
    Further allegations of the affidavit, that the defendants and the construction company have, subsequently to the execution of the contract procured by the plaintiff’s assignor, without the knowledge of the plaintiff or his assignor, entered into other contracts with each other for the construction of the same road, are not material, as such other contracts cannot affect the right of the plaintiff to recover.
    • Appeal by the defendant, John D. Williamson, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 21th day of January, 1898, denying his "motion to vacate an order for his examination granted for the purpose of enabling the plaintiff to frame his complaint.
    
      
      Eugene Van Schaick, for the appellant.
    
      Frederic B. Bard, for the respondent.
   McLaughlin, J.:

The affidavit upon which the order directing the examination of the defendant was based shows that there is no necessity for the examination, because the plaintiff is already in possession of all the information necessary to enable him to state the facts which constitute his cause of action. In the affidavit ,the plaintiff alleges that his assignor procured for the defendants, at their request, a contract for the-construction by them for the Arkansas Construction Company of a certain portion of the line of a proposed railroad, and for which, they agreed to pay him a reasonable compensation, and which should be in excess of “ the usual broker’s commissions for negotiating contracts of a similar nature; ” that the defendants have neglected to pay the compensation agreed, notwithstanding demand has been made, and that the right to recover the same has been duly assigned to, and is now held by, the plaintiff. We are unable to see why the plaintiff, having this information, cannot frame a complaint. Lie alleges that the defendants and tile .construction company, subsequent to the execution and delivery of the contract procured by his assignor, and without the knowledge or consent of his assignor or himself, entered into other contracts for the construction of the. same road. But, suppose they did, it can in no way affect plaintiff’s right to recover. Such contracts, if made, neither increased nor diminished defendants’ liability or the plaintiff’s right to recovery. Plaintiff must -stand or fall on the contract made by his assignor.

An-affidavit to authorize the granting of an order of the character of the one under consideration, must show that the plaintiff does not possess the information necessary to enable him-to-properly state the facts which constitute his cause of action. This must be clearly and definitely made to áppear by the affidavit, and in such a manner that the court can see from the¡ facts stated that the party does not possess such information. Nothing short of this will do. (De Lacey v. Walcott, 59 N. Y. Super. Ct. 137; Muller v. Levy, 52 Hun, 123; Martin v. Clews, 55 N. Y. Super. Ct. 552.) Plaintiff’s own affidavit shows that he has sufficient information to frame a complaint without the aid of an examination.

The order must, therefore, be reversed, with ten dollars costs and disbursements.

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

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