Lane v. O. F. Jonasson & Co. — 128 A.D. 266

Majority

p. 266

Willis Arthur Lane, Respondent, v. O. F. Jonasson and Company, Appellant.

First Department,

October 23, 1908.

Headnote

Discovery —inspection of books denied.

•A plaintiff suing to recover on a contract to pay a percentage of the profits in. addition to a salary is not entitled to an inspection of the defendant’s books and papers on a mere showing that he was promised “a piece of any new business that he * * * might be instrumental in obtaining,” which arrangement as to the share of profits was not definite.

Appeal by the defendant, O. F. Jonasson and Company, 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 27th day óf May, 1908.

William J. leitch, for the appellant.

Henry J. Goldsmith, for the respondent.

■ Appeal from an order granting an inspection of defendant’s books and papers.

The only foundation for the order which plaintiff ■ has obtained is the statement contained in his complaint, and reiterated in his petition, that defendant agreed to pay him in addition to a fixed salary, twenty per cent of the profits realized in defendant’s business.

In an affidavit read in support of his petition plaintiff details the facts relating to his employment, and shows that all that took placo respecting any proportion of the profits was that he was promised “ a piece of any new business that he, deponent, might be instru

p. 267

mental in obtaining,” and that even' a definite arrangement as to such share of the profits was not made. This furnishes no ground for ordering an inspection of books and papers.

The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.