Keilty v. Traynor — 31 A.D. 115

Majority

p. 115

Michael J. Keilty, Respondent, v. Bernard Traynor, Appellant.

Headnote

Inspection of a defendant’s boohs — insufficiency of the application therefor —proper procedure.

In an action brought to recover a sum of money claimed, to be due the plaintiff from the defendant as compensation for services rendered while the plaintiff was in the defendant’s employment under a contract, by the provisions of which the plaintiff, in addition to receiving a fixed sum per week, was to have five per cent of the net profits of the defendant’s business, the contract having been denied by the defendant, and a further issue having been raised as to the amount of the profits of the defendant’s business, an application was made by the plaintiff for an inspection of the defendant’s books, which stated that it was impossible for the plaintiff to prove the amount of profits made by the defendant in his business, except by entries contained in the books; that an inspection thereof was necessary to enable the plaintiff to prepare for trial, and that the records were material to the decision of the action, but which did not specify the accounts in the books, as to which an inspection was sought, nor allege that tlio facts sought to be established could be proved by the mere production of such books.

Held, that an order requiring the defendant to file with the clerk of the court the stock books, cash books and ledgers used in his business between certain dates, it not appearing that it was necessary to compel the defendant to file all the books of his business, should be reversed.

p. 116

Semble, that the proper course under these circumstances would he to examine the defendant before trial and require him on such examination to produce such books as would enable him to testify.

Appeal by the defendant, Bernard Traynor, 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 12th day of April, 1898, granting the plaintiff's motion for a discovery and inspection of the defendant’s books.

W. B. Bonihee, for the appellant.

James P. Cam^ibell, for the respondent.

The pleadings are not a part of the record upon which this appeal was heard, but the petition alleges that the action was brought to recover the sum of $1,700, claimed to be due the plaintiff from the defendant as compensation while in the defendant’s employ under a' contract, whereby the plaintiff in addition to receiving the sum of fifty dollars per week, was to have five per cent of the net profits made by the defendant in his business; that the answer of the defendant denies the contract as alleged by the plaintiff; that the amended complaint alleges that the defendant’s net profits made by him in the business were $34,000; but that the defendant in his answer alleges that his profits did not exceed one-fiftli of that sum. The petition then alleges that the plaintiff desires to inspect and examine the stock book, cash book and ledgers kept by the defendant in his business from the 1st day of January, 1895, to the 1st day of February, 1896, as.it is impossible for the plaintiff to prove the exact amount of profits made by the defendant in his business for the said period except by the entries contained in the said books; that an inspection of the said books is necessary to enable the plaintiff to prepare for trial, and that the records in said books are material to a. decision in this action. IJpon this petition the court ordered the defendant to file with the clerk of the court the stock books, cash books and ledgers used in his business from January 1, 1895, to February 1, 1896; and from that order this appeal is taken.

The petition does not specify the accounts in the books, as to which an inspection is sought. There is simply a general desire expressed

p. 117

to examine the various books mentioned, and it is not alleged, nor does it appear, that an inspection of these books will disclose material evidence to be used upon the trial. In the petition it is alleged that the fact sought to be proved was the amount of the defandant’s profits; but to obtain evidence of that fact the proper course would be to examine the defendant before trial, upon which examination the defendant would be required to produce such books as would enable him to testify. It is not alleged that the fact sought to be established could be proved by the mere prod action of the books; and upon the allegations of this petition it certainly would seem to be unnecessary to compel the defendant to file all the books of his business with the county clerk.

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

Van Brunt, P. J., Rumsey and Patterson, JJ., concurred.

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