Mason agt. Libbey. (Wigram on Discovery, 209, sec. 74; Carr agt. The Great Western Ins. Co., 3 Daly, 161). "The case must be so far disclosed as to enable a court of equity to see and be satisfied that the ends of justice require the interposition of its powers" (16 John., 598). "The practice of the court on applying for a discovery requires the party to swear that the discovery is necessary to enable him to prepare for trial" (Moor agt. McIntosh, 18 Wend., 529). * * * "The party desiring the examination of a witness may apply on an affidavit which shall state," among other things, "that the testimony of such witness is material and necessary for the party making such application" (Rev. Stats., vol. III, p. 673, title III, article first; compare sec. 390 and sec. 391, Code). This rule is in harmony with rule 21 of supreme court. "If the officer to whom such application is made shall be satisfied that the circumstances of the case require the examination of such witness in order to attain justice between the parties he shall make the order," &c. (Rev. Stats., vol. III, p. 673, sec. 3). The affidavit must disclose such a case as gives the judge power to act (Daily Reg., p. 330, Feb. 18, 1876). No cause whatever is shown on this application. The affidavit is, therefore, defective in this : It does not show that the proposed examination is necessary that it is desired that it would enable the plaintiff in any way to attain justice, to prove her case on the trial. Nor can it be reasonably inferred from the affidavit how it is material, necessary or even desirable. These proceedings should not be allowed for the purpose of vexation (N. Y. Daily Register, p. 329, Glenney agt. Stedwell). III. Suppose the application to be made under rule 21 of supreme court. Rule 21 of this court is as follows: "The application for an examination under section 391 of Mason agt. Libbey. the Code shall be upon affidavit disclosing the nature of the discovery sought to enable the party to prove his case, or defense, on the trial, and how the same is material in aid of the prosecution or defense." The affidavit of Mr. Lewis, on which this application was made, is not in compliance with the rule of court (21) and the examination should not be allowed. "" * * * 1. There is no allegation in the affidavit that any discovery is necessary" to enable the party to prove his case (6 on the trial." 2. There is no allegation in the affidavit that any of the proofs sought by the plaintiff would at all enable the plaintiff "to prove his case on the trial." III. There is no showing in the affidavit, and no attempt at showing, "how the same is material in aid of the prosecution." IV. The affidavit shows the following and nothing more: That issue is joined. That the case is on the calendar. That the action is brought to compel a conveyance, to recover possession of real property and certain interests therein, and for an accounting and for other relief. That defendant is material for the trial. That the object of this proposed examination is to ascertain what, if any, disposition defendant has made of trust funds, and to adduce other facts material to the issue. That defendant knows nearly all the facts put in issue as plaintiff's attorney is informed and believes. That defendant resides in Brooklyn and is about to depart from the state. The facts set forth in the affidavit are insufficient and the order and summons should be vacated. The provision is statutory and should be strictly complied with. Lewis & Beecher, for plaintiff, opposed. Mason agt. Libbey. BARNARD, J.-The plaintiff was not justified in entering her mother's house by unlocking the door without her mother's permission to make the service in question. As against the service of civil process, the law throws around the defendant the safeguard of protection to herself and her family. I cannot accept the plaintiff's statement that she carried the key to defendant's house by her permission. There had been long subsisting bitter and protracted litigation between the parties. If the plaintiff did once have the key by defendant's consent the plaintiff well knew that the right to use it had been withdrawn by the changed relations of the parties, if not by actual words. This service must be set aside, with costs (1 Howard Pr. Rpts., 199; id., 253). Robinson agt. Norris. SUPREME COURT. EUGENE N. ROBINSON et al. agt. JOHN NORRIS. Validity of contract with stock brokers. A customer who deals with stock brokers is estopped from disputing the high rates of commissions charged against him for raising money to carry his stocks in a stringent money market, where he is informed of their custom in that respect at the beginning of their dealings, and is kept informed at short intervals of the daily state of his accounts with them, to which he makes no objection until called upon to pay up. Neither is the customary objection tenable, that the brokers acted as his agents in borrowing the money, and, therefore, he owed the principals who loaned the money and not the agents; because no rule is better settled than that if an agent pays out money for his principal he may sue and recover the sum so paid from the principal. Although the court of appeals has decided that no custom among brokers can deprive parties of rights which the law gives them, they have not decided that those rights may not be waived by agreement. Therefore, where the customer, at the commencement of his dealings with the firm of brokers, deposits with them money with an order to purchase stocks, &c., on his account, and receives from them an agreement for his signature saying, we herewith inclose our usual customer's agreement for your signature," and he signs and returns the same to them, which agreement authorizes the brokers to sell at their discretion, at the brokers' board or elsewhere, or at public or private sale, with or without advertising, and without prior demand of any kind upon or notice to the customer of the time and place of sale, all or any gold, stocks, property, things in action or collateral securities held by them and belonging to the customer, the latter is bound by the terms of the agreement — and would have been bound though he had never signed it or given any assent to it, if he subsequently gave orders under it. Where the customer never, by any act of his, showed that he intended to close his accounts with the firm, there never having been any formal closing of it, although it might have been balanced for a few days, he is not authorized to claim that the dealings were confined to one specific purchase of bonds, which account was balanced, but the bonds were Robinson agt. Norris. never delivered up to him by his order or request, but retained by the firm as security for any future margin, and were eventually sold by them to satisfy it. Special Term, February, 1874. THE plaintiffs in this action are bankers and brokers in New York and the defendant is a lawyer in Buffalo. In the month of October, 1872, the defendant opened an account with the plaintiffs and remitted to them the sum of $1,000, and also giving them an order by telegram to buy certain stocks. In a letter of the 10th of October, 1872, acknowledging the receipt of this telegram, the plaintiff's say to the defendant, "we presume Messrs. H. U. Burt & Co. have informed you as to our custom in case of stringent money markets. After using our capital deposits and such loans as we obtain from banks and trust companies for the benefit of our customers, without extra charge, we charge to them, in proportion to their debit balances, such expenses as we may have to incur by reason of the stringency." On the 18th of October, 1872, the plaintiffs bought, for the account of the defendant, $5,000 South Carolina bonds, and on the same day informed him of the purchase by letter, which contained the following clause: "We inclose herewith our usual customer's agreement for your signature, and return to us." The following is such agreement: MEMORANDUM OF AGREEMENT MADE THIS DAY OF OCTO Whereas, I, John Norris, of Buffalo, N. Y., having opened and being in account with Robinson, Chase & Co., bankers and brokers, in the city of New York: Now, in consideration thereof, and for value received, I, John Norris, have agreed, and do hereby agree with the said Robinson, Chase & Co., that in case they shall advance any sum or sums of money, from time to time, in and for payment of any stocks, |