Boskowitz v. Ulmann — 106 N.Y.S. 870

Majority

p. 870

BOSKOWITZ v. ULMANN et al.

(Supreme Court, Appellate Division, First Department.

November 15, 1907.)

Headnote

Appeal from Special Term.

Action by Jesse L. Boskowitz, administrator of Ignatz Boskowitz, deceased, against Albert Ulmann and another. Erom an order denying the motion of said defendant to vacate an order for his examination, to enable plaintiff to frame his complaint, said defendant appeals. Reversed, and motion granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and HOUGHTON, JJ,

p. 871

Theodore Baumeister (S. Lachman, on the brief), for appellant.

Harold Nathan (John R. Dos Passos, on the brief), for respondent.

The appellant was in the employ of the firm of J. H. Sulzbacher & Co., as manager of their main office. This action is brought by the administrator of the deceased partner against Ulmann and the surviving partner, to compel the former to account for alleged fraudulent acts and for secret profits alleged to have been made as such manager *and not accounted for to the firm. The action was commenced at the same time plaintiff commenced his action against Anton W. Sulzbacher and Joseph H. Sulzbacher. The papers upon which the order for examination of Ulmann was granted show that plaintiff believes that he has a good cause of action against Ulmann for an accounting for his acts as such manager; but otherwise the affidavits are substantially the same as those upon which the order for the examination of Anton W. Sulzbacher in the action by this plaintiff against him and Joseph H. Sulzbacher, was made, which was involved in the appeal argued and decided herewith. 106 N. Y. Supp. 865 . The observations made in the opinion on that appeal with respect to the insufficiency of the affidavits apply with equal force here.

Upon the authority of that opinion, the order should be reversed, with $10 costs and disbursements, and motion to" vacate the order for" the examination should be granted, with $10 costs.