Hughes v. Peerless Unit Ventilation Co.

Philibin, J. The order for the examination of the defendant before trial was obtained for the purpose of framing a complaint. The affidavit upon which the order for the examination is based states that the summons has been issued and will be served with the order for which application is made. The summons is part of the record and has an indorsement thereon showing the nature and substance of the plaintiff’s cause of action. In the Municipal Court an action cannot be commenced by the service of a summons alone. Steffens v. Martin, 100 Misc. Rep. 263. There must be submitted to the court a written complaint, accompanying the summons, or an indorsement on the summons stating the nature and substance of plaintiff’s cause of action. This indorsement may be considered as a normal complaint within the provisions of section 78 of the Municipal Court Code; and the defendant is required to answer such indorsement as “ the complaint ” (Mun. Ct. Code, §§ 19, 20) in the action. The complaint having thus been made and served in the instant case, there was, strictly speaking, no ground upon which the court could grant an order to prepare one. However, if we consider substance rather than form, it appears that the plaintiff is in reality asking for an examination to prepare an amended complaint. Such an application was granted by this court in the case of Jerrells v. Perkins, 25 App. Div. 348, and under the [216] amendment of 1916 (Mun. Ct. Code, § 27, subd. 4), providing that in the Municipal Court the deposition of an adverse party may be taken in the same manner as in the Supreme Court, it must he held that the court below had power to make the order appealed from and that, therefore, the appeal must be dismissed. Id. § 154. While, therefore, we cannot .at this time pass upon the question as to the scope of the order, we think it is too broad and should have been limited so as to provide for an inquiry only as to the terms of any contract between plaintiff’s assignor and the defendant and as to the assignor’s performance. If the attention of the court below is called to this point, there is no reason to believe it will not take appropriate action. Cuy and Bijub, JJ., concur. Appeal dismissed, without costs.