Mendelson v. Newborg

Scott, J.: The plaintiff seeks to examine two of the defendants before trial in order to enable him to frame his complaint. The allegations in the plaintiff’s affidavit, which are not controverted, serve to show that he has a cause of action, but they also indicate that he is without sufficient information to intelligently frame a complaint. Ordinarily such an examination will not be allowed merely in order to enable the plaintiff to state the amount which he claims to be entitled to recover, but in the present case his lack of information does not appear to be limited to that item of his complaint. Each application like the present must be determined upon its own facts, and with a view to facilitating, rather than retarding, the prompt and accurate formulation of the issues to be tried. The present action is not unlike the case considered by this court in Matter of Sands (98 App. Div. 148) wherein an order was sustained for an examination for the purpose of framing a complaint. Upon the authority of that case we think that the order for examination should have been allowed to stand. The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.