In re Schoeller

McLaughlin, J.: On the 16th of July, 1901, the applicant was run into by an express wagon, upon which appeared the name “ Century Express ” and she subsequently brought an action against one George W. Slingerland to recover damages for personal injuries sustained, upon the theory that he, doing business under the name .of the Century Express, was responsible for them. Slingerland interposed an answer in which he denied his liability or that he was at the time the applicant was injured doing business under that name. The plaintiff thereupon discontinued the action and subsequently obtained an order for the examination of Slingerland for the puiv • pose of enabling her to frame a complaint in an action which she proposed to bring against the one responsible for her injuries, "if that fact could be ascertained from such examination.. The affidavit upon which the order was granted set out, in addition to the foregoing facts, that the Metropolitan Express Company had succeeded to the business formerly carried on by Slingerland, who is its manager and One of its directors, and that the Hew York Transportation Company claimed to have succeeded to the business of the Metro-: politan Company, but that she was ignorant of and unable to ascertain when the Metropolitan Company succeeded to the business of Slingerland, or when the transportation company succeeded the Metropolitan Company, and for that reason it was necessary and material for her, before bringing an action, to examine Slingerland in in order to ascertain “ who is the proper party to be made defendant.” But these facts manifestly did not entitle her, to the order directing the examination of Slingerland, and for that reason the motion to vacate should have been granted. The purpose of the examination is apparent. It is to ascertain whether the plaintiff has a cause of action against the Metropolitan Company or against the transportation company, and the rule is well settled that an examination of this character cannot he had for the purpose of ascertaining whether or not the plaintiff in a proposed action has a cause of action. (Matter of Anthony & Co., 42 App. Div. 66 ; Matter of White, 44 id. 119 ; Long Island Bottlers v. Bottling Brewers, 65 id. 459.) This is precisely what was held in each of the cases cited, and in Matter, of Anthony c& Go. it was also held that a “proposed defendant must be definitely and not tentatively named in the affi [349] davit (Code Civ. Proc. § 872); and that it must also be made to appear that the applicant has a cause of action against such specific person.” The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Van Brunt, P. J., and Ingraham, J., concurred.