Churchill v. Loeser — 35 N.Y.S. 310

Majority

p. 310

CHURCHILL v. LOESER et al.

(Supreme Court, General Term, First Department.

October 18, 1895.)

Headnote

1. Discovery—Inspection of Books and Papers.

In an action on a contract by which defendant employed plaintiff, and agreed to pay him a certain percentage of the amount of business done by him, plaintiff is entitled to an inspection of defendant’s books, to enable him to frame his complaint.

2. Account Stated—What Constitutes—Decision on Motion.

Whether certain transactions between plaintiff and defendant, in an action for an accounting, constitute an account stated, will not be determined on a motion for an inspection of defendant’s books, to enable plaintiff to frame his complaint.

Appeal from special term, New York county.

Action by Thomas J. Churchill against Frederick Loeser and others for an accounting under a contract by which defendants employed plaintiff to buy goods for them; agreeing to pay him, as compensation, a salary of $2,400 a year, and 10 per cent, of the profits of the department of which he was to be the buyer. From an order denying a motion for an inspection of defendants’ books, plaintiff appeals. ■ Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

John J. Adams, for appellant.

Johnson & Lamb, for respondents.

The reasons governing applications of this kind are fully stated in the opinions of the special term and of this general term in Veiller v. Oppenheim, 75 Hun, 22 , 26 N. Y. Supp. 1051 . Upon that authority, assuming the application to be made in good faith, it should have been granted. It is not seriously claimed that the papers used on the motion disclose any evidence of bad faith. •It is true that accounts were rendered by the defendants to plaintiff, at the time the stock was taken in each year, showing the aggregate amount of profits and losses in the departments in which the plaintiff was employed, and in the profits of which, if any had been made, he'would have been entitled to a percentage. These, however, only give the aggregate amount of profits and losses, without any details of how such totals were reached; and, claiming that they are incorrect, plaintiff says that an inspection of the books will be necessary, to show the incorrectness of such statements, and to enable him to frame his complaint. The suggestion that he is bound by the accounts so rendered, by failing to return or object to them, is met by his sworn statement that he did object when they were rendered, and was promised an inspection of the books from year to year,

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which, however, was never accorded him. Whether the rendering of such constituted an account stated between the parties, should not be determined upon motion, but is a matter to be disposed of at the trial. • We do not see that any great hardship can be inflicted upon the defendants by permitting the inspection, it being within their option either to deposit the books with the clerk of the court, or to submit them for inspection at their office during such hours and days as will cause them the least inconvenience. The order appealed from should be reversed, and the application granted, with $10 costs and disbursements.