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.