SECOND DEPARTMENT, SEPTEMBER TERM, 1880.

C. Haines and D. M. Carpenter, for the appellants.

E. A. Brewster, for the respondent.

BARNARD, P. J.:

The report of the referee is fairly supported by the evidence in reference to the note in question. It was dated October 1, 1872, and was given by L. S. Carpenter, who is the defendant's intestate, to Hannah Carpenter, his wife, who is the plaintiff's intestate, for $500. It was proven that Hannah Carpenter had separate property, and that on September 30, 1872, L. S. Carpenter received from one Henderson $1,200. $500 of this was deposited to the husband's credit in the bank, and $700 was drawn in cash. The next day this note was given. There was proof given tending to show that the husband had paid some money for the wife, not to a large amount. It is a fair inference that the accounts of the parties were settled when the note was given, especially as the $700 received by the husband was a much larger amount than would pay all his claims against his wife. Besides, there is no proof showing any open account upon the husband's books against his wife, except for a small balance of $24.60, which forms no part of the dispute in this case, but as to which no proof was given to establish it as a claim against the wife.

I think the referee erred in not allowing to defendants against the note the $285, for the board of Mary Murphy. She was Mrs. Carpenter's niece. She was sick and feeble. She went into the family of the intestate of the defendants upon the request of his wife, and upon her promise to pay her husband half her board after deducting what she could earn. One witness states that the contract was for Mrs. Carpenter to pay one-half the board to her husband, and that Mrs. Murphy was to pay the other half by her work for him. There is nothing in the marital relation which, in equity, prevents a wife making a contract like this. This proceeding includes both legal and equitable claims. The husband's claim against the wife was as good, so far as the marital relation affected the question, as that of the wife against the husband. The referee finds that there was no agreement by which the wife bound her HUN.-VOL. XXII.

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SECOND DEPARTMENT, SEPTEMBER TERM, 1880.

frame the 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 divers times and places to deponent unknown, at prices less than those fixed by the said Benjamin E. Hale, in violation of the terms of the said contract; that the said sales were made by said Rogers, or his agents, in the course of defendant's business, which business was carried on during a series of years and in different parts of the United States, and without any inspection or control, or any right of inspection or control, on the part of the plaintiff or his testator herein; that the circumstances of time, place, and individuals to whom the said sales were made were not and are not within the knowledge of plaintiff or his testator; that plaintiff or his testator have had no means of discovering, nor have been guilty of any negligence in ascertaining said circumstances; that said circumstances are exclusively within the personal knowledge of defendant and his agents; that the only manner in which plaintiff can ascertain the facts and circumstances which are necessary to frame said bill of particulars, and maintain and prosecute this action, is to examine the defendant herein in regard to his personal knowledge of the transactions referred to herein, and the memoranda and entries relating thereto, made in the books and notes of account kept by defendant in his business of manufacturing and selling the said wrapping paper; that it is the purpose and intention of plaintiff to examine the said defendant, Rogers, as a witness, and to use his examination as evidence on the trial in this action; that no previous application for this order has been made to this court, or a judge thereof, by or on behalf of the plaintiff herein.

Morris P. Ferris, for the appellant.

Albert Roberts, for the respondent.

BARNARD, P. 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.

SECOND DEPARTMENT, SEPTEMBER TERM, 1880.

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 for the man

ufacture 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 insufficient. The 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 facts 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.

DYKMAN, J., concurred.

Present-BARNARD, P. J., GILBERT and DYKMAN, JJ.

Order affirmed, with costs and disbursements.

SECOND DEPARTMENT, SEPTEMBER TERM, 1880.

ROBERT W. FIELDING, RESPONDENT, V. JOHN LUCAS, APPELLANT, IMPLEADED, &C.

Attachment against firm property-when the attaching creditor is not a proper party to an action for a dissolution of the firm.

The complaint in this action alleged that the plaintiff and the defendant Walter were copartners, and that the firm had become insolvent; that the other defendants had, by collusion with the defendant Walter, commenced actions against the firm in the Marine Court of the City of New York, in which attachments had been issued, under which property of the firm had been seized; that such attachments were void, for the reason that the firm had a place of business in the city of New York, though both of the members thereof resided in Kings county. The relief sought was the dissolution of the firm, the appointing of a receiver, the vacating of the attachment, and also that the said defendants might be restrained from further prosecuting their actions in the Marine Court.

Held, that as to the attaching creditor, the complaint did not state facts sufficient to constitute a cause of action, and that it should be dismissed.

APPEAL by the defendant Lucas, from a judgment entered upon an order overruling a demurrer to the complaint.

The complaint alleged, among other things, that the plaintiff and the defendant, John F. Walter, Jr., were copartners by the firmname of Walter & Fielding, under an agreement by which the period of its continuance was not determined; that the copartnership had become insolvent; that by collusion with the defendant, John F. Walter, Jr., the other defendants had commenced actions against the firm in the Marine Court of the city of New York; that warrants of attachment had been issued in the said actions by justices of the Marine Court, one of them at the suit of the defendant, Lucas, in an action on contract for the payment of money only; that the action was commenced by the issuing of a summons returnable in six days, and that the warrant was issued upon the sole ground that the members of the said firm of Walter & Fielding were not residents of the city and county of New York; that, in fact, both members thereof were residents of the county of Kings, and had their office and place of business in the city and county of New York at the time said warrant was issued. The complaint further

SECOND DEPARTMENT, SEPTEMBER TERM, 1880.

alleged that the sheriff had taken possession of the property of the firm under the said attachment, and that the said property would be sacrificed, to the great injury of the creditors of the firm, unless the attachment was vacated. That the said justices of the Marine Court had no jurisdiction to issue a warrant of attachment against the said firm as non-residents, so long as the members thereof were residents of the State of New York, and had their office and place of business in the city of New York.

The relief asked for was the dissolution of the copartnership, the appointment of a receiver of its property pendente lite, and finally, the distribution of the assets of the firm, and that the said warrant of attachment be declared void, and the firm property be released therefrom, and that the defendants be restrained from prosecuting the said actions in the Marine Court, and be required to prove their claims in this action; and for other and general relief. The defendant, Lucas, demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action.

David Crawford, for the appellant.

Joseph A. Shoudy, for the respondent.

BARNARD, P. J.:

The complaint states no legal cause of action against the defendant, Lucas; he is a creditor of the firm of Walter & Fielding. He lives in Brooklyn, and commenced an action against the parties in the Marine Court of the city of New York, to recover his debt. The partnership had an office or place of business in the city of New York. The attachment was granted against the property of the firm by the judge of the Marine Court, based upon an affidavit of the non-residence of the parties. The partnership goods were seized under the attachment of Lucas and others. One of the partners commences an action against his copartner, to settle the partnership affairs, to terminate the partnership, and Lucas is made a party defendant, and relief is asked against him that the attachment be accreed to be void, and that he prove his claim in this action, and, in the meantime, pending the action, that he be enjoined from en