Majority
p. 642BRICK v. SHAFF et al. (Supreme Court, Appellate Division, First Department. October 23, 1908.) Argued before PATTERSON, P. J., and INGRAHAM, Mc-LAUGHLIN, CLARKE, and SCOTT, JJ.
Headnote
Discovery (§ 37[1] )—Examination of Defendant Before Complaint.Plaintiff may not have an examination of defendant before complaint, merely to enable plaintiff to allege the exact amount due him.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 50; Dec. Dig. § 37.*]
Appeal from Special Term.
Action by Harry Brick against Carl Shaif and another.. Erom an order denying a motion to vacate an order for examination of defendants before complaint, they appeal.
Reversed, and motion granted.
Louis Jersawitz, for appellants.
Jonah J. Goldstein, for respondent.
Plaintiff sues for commissions upon sales made for defendants. Among other things he claims to be entitled to commission upon duplicate orders. He knows the amount of direct orders he obtained, but alleges that between January 1, 1907-, and November 4, 1907, a number of duplicate orders were received and filled by defendants, and that he does not know the exact amount due him, and cannot allege the same with certainty. We have uniformly refused an examination befqre complaint merely to enable the plain
p. 643
tiff to allege the exact amount due him, and we see no reason for departing from the rule in this case.
Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.