Marrone v. New York Jockey Club

The difficulty with the plaintiff’s application is that he does not show that he has a cause of action. He not only does not show that he has a cause of action against the defendant, but he fails to set out a cause of action against anybody. Not only was the contract in writing, under seal, but in the name of a party other than the defendant; and there is no agreement therein contained that the party contracting with the plaintiff shall allow the plaintiff to do all this work. The plaintiff contracts to take out rock, etc,, and the other party contracts to pay him a certain price for what he does take out, and nothing more. It is conceded that the plaintiff has been paid for all work done, and this action is brought to recover damages for not being allowed to do more. As there was no obligation to give the plaintiff more to do, its refusal could not give rise to an action for damages sustained by such refusal. The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied.

I concur, also, on the ground that the discovery does not appear to be necessary to enable the plaintiff to frame a complaint. If the contract was in fact made by the plaintiff, and it has refused to permit its performance, the plaintiff has all the knowledge that can be required to allege his cause of action, as he may state the quantity of stone yet to be excavated large enough to fully meet his claim as it may appear on the trial.

Lawrence, J., concurs.