Corbin v. Niagara Junction Railway Co.

1 A.D.2d 753, 147 N.Y.S.2d 232, 1955 N.Y. App. Div. LEXIS 3663

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1955
• Status: Published

Opinion

Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, without prejudice to the right of the plaintiff to ¡make another motion upon proper papers, if so advised. Memorandum: Plaintiff’s affidavit in support of his motion to be allowed to examine the defendant to obtain information to enable him to draw a complaint is insufficient to establish that he has any palpable cause of action against the defendant. The affidavit does not state how or when the accident occurred nor does it state his relationship to the defendant. A conclusory statement unsupported by any allegation of fact that plaintiff’s injuries resulted from the negligence of the defendant is not sufficient (see Kenerson v. Davis, 278 App. Div. 482; Beikirch v. Loebs, 243 App. Div. 859; Ashton v. Baker Mfg. Corp., 206 App. Div. 343). The order appealed from should, therefore, be reversed and the motion denied, without prejudice, however, to the plaintiff’s right to bring another motion upon proper papers. All concur. (Appeal from an order of Niagara Special Term granting plaintiff’s motion to examine defendant for the purpose of framing a complaint.) Present—McCurn, P. J., Vaughan, Kimball, Wheeler and Van Duser, JJ.