#### George Mitchell, Respondent, *v.*Central Mines Development Company, Limited, a Corporation, Appellant.

First Department,

February 21, 1908.

Examination of defendant to frame complaint — moving affidavit insufficient.

To justify an order for the examination of a party before the service of the complaint, it is essential that the facts which appear in the moving affidavits show that the plaintiff has a cause of action and that the examination of the adverse party is necessary to enable the plaintiff to prepare the complaint. A mere conclusion alleged on information and belief without stating the sources of the information or the grounds of the belief is insufficient to establish a cause of action.

Thus an affidavit on a motion seeking an examination of the defendant before trial in order to frame the complaint in an action seeking the cancellation of an allotment of stock which merely alleges upon information and belief that the ' statements and representations by which the plaintiff was induced to request the allotment have not been kept and performed by the defendant, but have been violated, etc., is insufficient, being a mere conclusion upon information and belief without stating the sources of the information or the grounds of the belief.

*326Appeal by the defendant, the Central Mines Development Company, Limited, a Corporation, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 13th day of January, 1908, denying the defendant’s motion to vacate an order for the examination before trial of the defendant, through its officers, in order to obtain information for the purpose of drafting the complaint.

*Franklin*Pierce, for the appellant.

*D. W.*Armstrong, for the respondent.

Ingraham,, J.:

•Under section 872 of the Code of Civil Procedure it is essential that a party to an action who desires, to examine his adversary should show by the affidavit the nature of' the action,, the substance of the judgment demanded, and that the testimony of the party sought to be examined is material -and necessary for the party making such application and for the prosecution or defense of such action. The plaintiff, as a compliance with these requirements, presented to the court an affidavit which alleged that the action was brought to procure -the- cancellation of plaintiff’s request for an allotment of shares in the defendant corporation and for the return of the sum of £2,000 paid'on account thereof; that in the month of December, 1906, or early in the year 1907, plaintiff requested the directors óf the defendant corporation to-allot to him 10,000 shares of the said defendant company of the par value of £1 each; that the plaintiff has no knowledge as to whether such allotment whs ever formally made and the number of shades set apart to and for him; that this request was based upon certain representations made to him as to the affairs of the company, and that by reason of these statements and representations and in reliance thereon the plaintiff was induced to make his request for the' allotment of said shares. The affidavit then alleges, upon information and belief, that *“*the statements and representations by which plaintiff was induced to make the request for the allotment of the said shares, and the terms and conditions on which said request ivas in fact made by him, have not been kept, performed and observed by the defendant,, but the same have been violated, broken and disregarded in various important and essential particulars; but neither plaintiff nor deponent has sufficient knowl*327edge or information in regard thereto to set np in the complaint herein the facts touching the said breach, violation and disregard of the said terms, conditions, statements and representations as fully and definitely as it is necessary should be done in order to properly and adequately state plaintiff’s cause of action herein.” The affidavit is not made by the plaintiff but by the plaintiff’s attorney, and this is the only allegation as to the falsity of the representations by which the plaintiff was, induced to make the request for an allotment of shares óf stock of the defendant corporation.

We think this is insufficient to justify the court to require the defendant to be examined to enable the plaintiff to prepare the complaint. There is a general allegation on information and belief without stating the source of the information or the grounds of the belief, and without stating which of the representations were not complied with. Upon this affidavit as it stands there is no proof that the plaintiff has any cause of action nor is any fact stated from which the court can ascertain that the examination would be material and necessary for the plaintiff in the prosecution of the action. To justify an order for the examination of a party before the service of the complaint, the essential requirements are that the facts which appear by the affidavits show that plaintiff has a cause of action and that the examination of the adverse party is necessary to enable the plaintiff to prepare the complaint. A mere conclusion or allegation upon information and belief without stating the sources of the information or the grounds of the belief is not sufficient, and as the plaintiff in this case fails to state the facts upon which he bases his allegation that thesó statements and representations that were made to induce him to request an allotment of the stock were untrue he was not entitled to an order for the examination of the defendant.

It follows that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendant granted, with ten dollars costs.

Patterson, P. T., Laughlin, Clarke ■ and Houghton, JJ., concurred.

.Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.