Frowein v. Lindheim — 25 Abb. N. Cas. 87

Majority

p. 87

FROWEIN v. LINDHEIM.

N. Y. Supreme Court, First District, Special Term;

June, 1890.

Headnote

Discovery and inspection.] An order will not be made requiring a party who resides in a foreign country to produce Ms books of account, unless the party seeking it furnishes satisfactory proof that such books of account are kept and that some of the entries will furnish the evidence required. A mere statement of the fact by the petitioner, where it is obviously impossible for him to have any personal knowledge as to the existence of the books or the nature of their entries, is insufficient.

Petition by defendant for discovery and inspection with copy of plaintiff’s books, papers and documents to enable defendant to frame his answer and counterclaim.

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The action was brought by Frederick J. Frowein and others against Moses Lindheim. The petition stated that defendant was employed by plaintiffs as their sales agent for the sale of their tobacco in the United States and Ganada, he to receive five per cent, on all sales of tobacco made by plaintiffs in said countries and to be reimbursed for his expenses ; that he entered and continued in the employment, and made sales, incurred expenses and laid out moneys in the discharge of the agency. That plaintiffs,- contrary to their agreement, made sales in the United States and Canada and withheld the facts and amounts from defendant. That plaintiffs kept books and accounts of the transactions, in which were stated the names of the parties, their places of business and residence and the amounts received. That only a small portion of the transactions are within the knowledge of the petitioner, etc.

Strong & Cadwalader, for plaintiffs.

Hahn & Myers, for defendant.

The plaintiffs reside in Holland, and whatever books of account they have are there. It is obviously impossible that defendant should have any personal knowledge as to whether the plaintiff, as matter of fact, did keep books of account or not, or if any such books were kept, whether or not they contained any entries that would show whether or not plaintiff had sold goods to other persons in this country. It would be manifestly absurd to order the plaintiffs to produce all of their books of account, or certified copies of them, and yet, from the petition, it would be impossible to make an order directing that any particular book be produced, or that a copy of any particular entry be furnished. The defendant may imagine that plaintiffs keep books of account, because merchants generally do, but until some satisfactory evidence that they do keep such books of account, and that some entries in such books would

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furnish the evidence that the defendant requires, it would be manifestly improper to order a discovery. See Cornish v. Wormser, 53 Hun, 40 .

Motion denied, with $10 costs to abide the event.