Opinion
June Term, 1896.
David Neumark, for the appellants.
C.J. Shearn, for the respondent.
Present — VAN BRUNT, P.J., BARRETT, PATTERSON and INGRAHAM, JJ.
The order for the examination of the president of the defendant was granted upon an affidavit stating that such examination was necessary to enable the plaintiffs to prepare their complaint. That order was vacated for the reason that the papers did not disclose sufficient grounds upon which to require the defendant, through its president, then to submit to an examination. The action is for the conversion of a portion of the proceeds of goods sold by the defendant as the selling agent of the plaintiffs, and the affidavit of Alfred Kessler, one of the plaintiffs, states that the defendant, in violation of its duty, sold the goods, made fraudulent returns and has converted to its own use about $1,500 of the proceeds. The court below was right in stating that the affidavit did not disclose sufficient grounds upon which to require any one connected with the defendant to submit to an examination for the purpose of enabling the plaintiffs to frame a complaint. Every allegation necessary in the complaint for the conversion of the $1,500 is contained in Mr. Kessler's affidavit, and there is no occasion for an examination of the character asked for to enable the plaintiffs to state in the complaint any fact which would be the basis of liability or even to ascertain the amount of damages to be demanded for the conversion. That the affidavit discloses a state of facts which may render it necessary for the plaintiffs to examine some one of the defendant's officers as a witness before trial may be conceded, but that was not the ground upon which the order for examination now before us was applied for.
The order appealed from vacating the order for examination must be affirmed, with ten dollars costs.
Order affirmed, with ten dollars costs and disbursements.