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Blumberg v. Lindeman

19 A.D. 370 Court N.Y. App. Div. English

Delivered by *371 Patterson, J.:

Contents

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p. 370
Alexander Blumberg, Appellant, v. Herman Lindeman, Respondent.

Headnote

Inspection and discovery of boohs—when a previous demand therefoi' is unnecessary.
In an action brought to recover agreed commissions upon certain sales, the plaintiff, on the defendant’s motion, was required to amend his complaint and set forth the sales upon which he claimed to be entitled to commissions, which requirement he showed his inability to comply with without an inspection of the defendant’s books, and by an alternative order to show cause applied for such inspection. .■
Held, that in such a case a previous demand for an inspection and" discovery was not necessary, and that the application should have been granted.
Appeal by the plaintiff, Alexander Blumberg, from an order of the Supreme Court, made, at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 10th day of Ap 1897, denying his motion for a discovery of the defendant’s books.
Charles M. Boerman, for the appellant.
Michael Schaap, for the respondent.

This motion should have been granted. The plaintiff sued for commissions on specific sales made by him upon an employment by the defendant and under an agreement as to compensation. He served a complaint, but was required on the defendant’s motion to amend that complaint and set forth therein the sales he had made, upon which he claimed to be entitled to receive commissions. He showed to the court below on this motion' that he could not comply with the order referred to without an inspection of the defendant’s books, and it was for the very purpose of putting himself in the position to obey that order that he asked for au inspection. The court below denied his motion only- on the ground that he had not demanded such inspection before moving for it; but an independent demand was not necessary to give him a standing in court to make the motion. Where, as in this case, an alternative order to show cause is issued, a previous demand for an inspection and discovery is not necessary. The decision of the court below was based on the case of Gross v. Bock ( 15 N. Y. St. Repr. 965 ), but that case is explained and shown to be inapplicable (Albany Brass & Iron Co. v. Hoffman, 86 Hun, 620 ), adopting the opinion of Herrick, J., at the Special Term. ( 12 Misc. Rep. 167 .)

The order appealed from should be reversed, with costs, and the motion for an inspection and discovery granted, with costs.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

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

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