Edmonds v. Attucks Music Publishing Co. — 117 A.D. 486

Majority

p. 486

Shepard N. Edmonds, Appellant, v. The Attucks Music Publishing Company, Respondent.

First Department,

February 8, 1907.

Headnote

Practice — inspection of books and papers before trial — relief from stipulation.

When in an action for services the defendant counterclaims fifty odd items of moneys misappropriated by the plaintiff at specific dates, wliieh items are particularly set forth in the answer, the plaintiff should be allowed an inspection of the defendant’s, books in order that uncontested issues may be eliminated from the trial.

Under such circumstances an inspection is as muuh for the benefit of the trial. court as for the party himself.

Appeal, by the plaintiff, Shepard N. Edmonds, from an -order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1906, granting the defendant’s motion to be relieved from a stipulation consenting to the inspection of certain

p. 487

of defendant’s books and papers and denying the plaintiff’s motion for an inspection thereof.

Charles Goldzier, for the appellant.

Benno Loewy, for the' respondent.

Counsel formerly representing the defendant had stipulated orally with counsel for plaintiff that certain books and papers .of the defendant might be examined without an order, or that in case of necessity an order so to do might be entered, which latter course was pursued. Meantime, however, defendant had changed attorneys and moved to be relieved from this stipulation and order, to which motion plaintiff replied by asking that the order stand or that a new order for inspection be made. ■ The court set aside the former stipulation and order and denied plaintiff’s motion for inspection.

The action is for services rendered by the plaintiff to defendant as its general manager in the music publishing business. 'The answer, in addition to the denials, sets up a counterclaim of fifty odd items of money, specific dates and amount of which are given, which, it is alleged, the plaintiff misappropriated, aggregating in all the sum of $2,745.81. The particularity with which these items are set forth indicates that presumably they must appear upon defendant’s books of account, and such is claimed to be the fact. .

The consent of defendant’s former counsel that plaintiff might examine defendant’s books would seem to have been entirely proper. Such inspection would necessarily facilitate the trial by determining what could be admitted and what would be controverted. There are a large number of items and an inspection under such circumstances is as much for the benefit "of the trial court as for the party himself, for it tends to eliminate uncontested issues. The fact that there have been two mistrials without inspection is not a reason for now withholding it. On the contrary, it may tend toward the bringing about of a trial which will finally settle the controversy. • '

It is possible that the consent of counsel for defendant to an order for inspection, he not being the attorney of record, was not

p. 488

binding, and that' for that reason the order entered after' he had ceased to be counsel should have been set aside., The court, however, should have granted the plaintiff’s’ motion for inspection of the defendant’s books mentioned in and according to the form of the order which was set aside. ... . ■

The order appealed from should be reversed, with ten dollars - costs and disbursements, and plaintiff’s motion for inspection granted as indicated. ' "

Patterson, P. J.j Ingraham, McLaughlin and LaughliN, J.J., concurred-.'

Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion. Séttle Order on notice.