Hale v. Rogers ( 1880 )

Barnard, R. J. :

The order was properly denied. There is no proof of the materiality of the defendant to the prosecution of the action. There is really no proof that a cause of action exists against the defendant. The affidavit is made by the attorney, who asserts that “ this action is brought to recover damages for certain breaches on the part of defendant of a contract in writing . . . . i for the manufacture and sale.....of printed wrapping paper.” This is the only allegation. The existence of a cause of action is not established by an affidavit of what the action is brought for-The proof of materiality of the defendant is quite insuffieientThe attorney for plaintiff makes affidavit “ that the testimony. of "William H. H. Rogers, the defendant, is necessary and material to enable plaintiff to prove his bill of particulars above referred to, and properly to maintain and prosecute this action on the ground that the said Rogers has violated the terms of said contract by selling the said wrapping paper to divers persons at various times and. places to deponent unknown, at prices less than those fixed by the-said Benjamin E. Hale, in violation of the terms of said contract.” The affidavit may be made by the attorney, but it must show the-materiality of the witness either to the knowledge of the attorney,, or it must show, if made on information, the sources of information upon which the attorney bases the allegation of the materiality of the party. The affidavit does not comply with Rule 89; no fa^ or circumstances are stated which show the examination of the defendant to be material and necessary. The existence of an action, without proof that it rests on a real breach of contract, and an affidavit by the attorney that the defendant’s examination is necessary “ properly to maintain and prosecute ” it, is insufficient to justify the granting of the order asked for.

The order should be affirmed, with costs and disbursements.

"Pykman, J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order affirmed, with costs and disbursements.