Hart v. Chase

73 N.Y.S. 957

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1902
• Status: Published

Opinion

VAN BRUNT, P. J.

While, undoubtedly, it is not necessarily requisite that an affidavit in an application of this description should state a complete cause of action, yet the nature of the action must be stated, and the substance of the judgment demanded, and it must be seen that the plaintiff is entitled to some relief. In the case at bar the affidavit, while indulging in general allegations of facts clearly not within the affiant’s knowledge, states no cause of action whatever against this defendant who is sought to be examined. The agreement which is sought to be made the basis of the action in no way bound the New Amsterdam Casualty Company, and the fact that the defendant received the subscriptions provided for in said agreement raised no obligation whatever upon his part to respond to the plaintiff. And, furthermore, it may be said that it nowhere appears what the plaintiff’s claim is, or to what he believes himself to be entitled. Under these circumstances, we think that there was not only no cause of action shown, but, so far as the facts disclose, an absolute want of any right to proceed against this defendant.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.