Opinion
December, 1907.
Frankenthaler Sapinsky, for appellant.
Kuntz Oppenheim, for respondents.
Plaintiffs claim to have a cause of action against the defendants for broker's fees, earned in bringing about an exchange of property, and that in order to cheat plaintiffs out of their commissions defendants had the contract of sale made in the name of a third party as a dummy, which third party afterward transferred the exchanged property to defendants. As plaintiffs have never seen the contract of sale and are unable to state the values placed upon the exchanged properties, or the amount of the commission to which they are entitled, and are unable to state the date of said contract, they moved for an inspection of said contract, in order to frame their complaint, and from the order granting the same defendants appeal. The application was based on affidavits only, whereas section 805 of the Code requires the application to be based upon a petition verified by affidavit, and failure to do so deprives the court of any power to enter an order thereon. Lee v. Winans, 99 A.D. 297; Hirschfield v. Rosenthall, 99 N.Y.S. 912.
The order must be reversed with ten dollars costs and disbursements and the motion denied, without prejudice to a new application for a discovery in the court below.
GUY and BRUCE, JJ., concur.
Order reversed, with ten dollars costs and disbursements and motion denied without prejudice to a new application for a discovery in court below.