Strauss v. Von Tobel — 131 A.D. 823

Majority

p. 823

Lou R. Strauss, Respondent, v. Jacob Von Tobel and Edwin Von Tobel, Copartners, Carrying on Business under the Firm Name of Jacob Von Tobel & Sons, Appellants.

First Department,

April 8, 1909.

Headnote

Discovery — examination of books and papers — action to recover commissions.

In an action to recover commissions on goods sold the plaintiff will not be permitted to make a general examination of the business books of his former employers covering the period in controversy, since such inspection might be used for an improper purpose. The relief to which he is entitled can be obtained by an examination of the defendants before trial upon which the books can he produced by a subpoena duces tecum.

Appeal by the defendants, Jacob Yon Tobel and another, copartners, etc., 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 Yoik on the 10th day of February, 1909, granting the plaintiff’s motion for a discovery and inspection of the books of the defendants.

Louis Zinke, for the appellants.

William Bondy, for the respondent.

The plaintiff had a contract with the defendants to act as selling agent of all products manufactured by them. His compensation was to be seven and one-half per cent on the selling price of all goods sold. The plaintiff claims that the defendants have not properly accounted to him and have not paid his full commissions, and he has obtained an order for inspection of all the business books of the defendants covering the period in controversy.

This court expressly held in Harbaugh v. Middlesex Securities Co. ( 110 App. Div. 633 ) that an order for the general examination by a former employee of the business books of his former employer was improper, not only because it compelled the deposit of the books of a going concern in court, thus inconveniencing the busi

p. 824

ness, but because such inspection might be used for an improper and hostile purpose.

The rule in this department is contrary to that of the second department, as enunciated in Thomas v. Waite Co. ( 113 App. Div. 494 ), and was not followed by the Appellate Term in Pfaelzer v. Gassner ( 54 Misc. Rep. 579 ).

The same relief to which plaintiff is manifestly entitled can be had in a more limited form by an examination of the defendants before trial, upon which the books can be produced upon a subpoena duces tecum, as is pointed out in Harbaugh v. Middlesex Securities Co. (supra). The main controversy between the parties on the merits seems to be as to whether plaintiff is entitled to commissions on goods manufactured by defendants for others and not sold, as well as those actually sold in the market. We expressly withhold any opinion on that subject.

It follows that the order for a discovery of the books was improper and must be reversed.

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

Ingeaham, Lahghlin, Clabke and Scott, JJ., concurred.

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

Cases cited

Harbaugh v. Middlesex Securities Co. 110 App. Div. 633 N.Y. App. Div. 1906-01-19 p. 823