TILTON v. UNITED STATES LIFE INSURANCE COMPANY

TILTON v. UNITED STATES LIFE INSURANCE COMPANY. N. Y. Common Pleas; Chambers, 1876. Affidavit fob Examination Befobb Trial. An Older for examination of an adverse party before trial can not be sustained on an affidavit in which material allegations are on information and belief. Motion to vacate an order. John Tilton and others, stockholders in the corporation defendant, brought an action against the company and its officers, and obtained an order for examination of certain individual defendants to enable him to frame his complaint. The material allegations of the moving affidavits relating to the defendants whom it was sought to examine were expressed to be on information and belief, and the sources and nature of the information were not stated, nor were the grounds of belief. Mr. Vanderpoel, moved to vacate the order. W. J. Butler, opposed. See Slade v. Joseph, 5 Daly, 187; Cummings v. Woolley, 16 Abb. Pr. 297, note; Brooklyn Daily Union v. Hayward, 11 Abb. Pr. N. S. 235; Thompson V. Lumley, p. 255 of this vol.; and see p. 172 of this vol. As to necessity of joining as defendants, the persons sought to be examined, see Goodyear v. Phoenix Rubber Co., 48 Barb. 522; Carr v. Great Western Ins. Co., 8 Daly, 160. [MAJORITY — Yak Brunt, J. [after stating the nature of the affidavits.]] Yak Brunt, J. [after stating the nature of the affidavits.] The allegation of a fact upon information and behalf in a complaint, without stating any of the evidence upon which that belief is founded, is a perfectly good allegation, because it is the duty of the pleader to state the facts upon which he believes his cause of action is founded, and not any part of the evidence tending to establish those facts. The office of an affidavit is very different. An affidavit must not only state facts, but also the evidence tending to establish those facts. It is the weight of the evidence disclosed in an affidavit that gives it its influence. The court must be satisfied from the evidence which the affidavit contains that the facts exist entitling the party to the remedy sought. It is in most cases, there being a few exceptions, a matter entirely immaterial what the affiant believes from the information which he has received. The question necessarily is* is the court satisfied that the information conveyed, considering its character and the source from which it comes, justifies the affiant in the belief to which he has sworn ? That this is the true function of an affidavit is distinctly recognized by the Code, because it requires in every instance that a party applying for a provisional remedy show that he is entitled to it by evidence furnished by affidavits, and that, too, in one instance where the complaints must be before the court at the same time. An injunction cannot be granted unless it shall appear by the complaint that .the plaintiff is entitled to such relief; but that sufficient grounds therefor exist must be shown by affidavits to the court or judge. And how is it possible for the court or judge to be satisfied that sufficient grounds therefor exist except by a disclosure in the affidavits of the evidence by which the plaintiff proposes to establish the facts in his complaint, and which, if established, entitles him to the injunction ? It seems to me, therefore, that an affirmation in an affidavit, upon information and belief, without giving the evidence upon which that belief is founded, is entirely nugatory, and presents to the court nothing upon which it can act. I am aware that it is a common form of drawing an affidavit, but I think upon a moment’s reflection it will- be seen that the distinction which I have suggested between an affidavit and a complaint exists ; and it must be preserved. I think, therefore, that all the affirmations in the affidavits upon which the order for the examination of the defendants were founded being upon information and belief, and • the affidavits not stating any of the evidence upon which such belief is founded, there is no evidence that any cause of action whatever exists in favor of the plaintiff against the defendants sought to be examined, and the order for such examination should be vacated, with ten dollars costs of motion. Order accordingly. Code of Pro. §§ 319, 330.