Majority
p. 324SLAUGHTER v. TURKEL et al. (Supreme Court, Appellate Division, First Department. October 20, 1911.) Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and MILLER, JJ.
Headnote
Discovery (§ 40*)—Account—Examination Before Trial.In an action for an accounting, plaintiff is only entitled to an examination before trial with reference to such facts as are material and necessary to be proved to entitle him to an interlocutory judgment.
[Ed. Note.—For other cases, see Discovery, Dec. Dig. § 40.[1] ]
Appeal from Special Term, New York County.
Action by Alexander F. Slaughter against Bernard Turkel and another, doing business as Turkel & Felstiner. From an order denying defendants’ motion to vacate an order for the examination of defendant Felstiner before trial, defendants appeal. Reversed, and motion to vacate granted.
Spiro & Wasservogel (Abraham I. Spiro, of counsel), for appellants.
Warren Leslie (George H. Francoeur, of counsel), for respondent.
The complaint is framed in equity, and the relief demanded is an accounting. This court has repeatedly held that in an action for an accounting the only examination to which the plaintiff is entitled before trial is as to such facts as are material and necessary to be proved to entitle him to an interlocutory judgment. He may not have an accounting until he has first established that he is entitled to it.
The order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate granted, with $10 costs. All concur.