Bridgman v. Scott — 13 N.Y.S. 338

Majority

p. 338

Bridgman v. Scott.

(Supreme Court, General Term, First Department.

February 11, 1891.)

Headnote

Discovert—Right to an Accounting.

Plaintiff was employed by defendant under a contract which provided for the payment of a salary and a percentage of the net proceeds of the business after deducting a certain sum therefrom. Held that, as an action upon this contract for an accounting was not maintainable, an order directing an inspection and discovery of defendant’s books, so as to enable plaintiff to frame his complaint, would be set aside.

Appeal from special term, New York county.

Action by Adolphus Bridgman against Ruth E. Scott, sued as Mary Scott. Defendant appeals from an order directing an inspection and discovery of her books, so as to enable the plaintiff to frame his complaint.

Argued before Van Brunt, P. J., and Daniels and O’Brien, JJ.

John W. Weed, for appellant. Abram Fling, for respondent.

It appears from the petition that the plaintiff was in the imq>Ioy of the defendant under a contract which provided for the payment of a salary of $3,000, and in addition thereto a further sum, equivalent to 20 per ■cent, of the net proceeds of the business for the year 1890, after first deducting therefrom the sum of $5,000. It also appears from the petition that by reason of such contract this action is brought for an accounting. It being evident that an action upon this contract for an accounting cannot be maintained, the order for the inspection of the books was unauthorized, and should not have been made. For these reasons the order should be reversed, with ;$10 costs and disbursements, and the motion denied. All concur.