Stanton v. Friedman — 62 N.Y.S. 291

Majority

p. 291

STANTON v. FRIEDMAN et al.

(Supreme Court, Appellate Division, First Department.

January 19, 1900.)

Headnote

Discovert—Examination of Books—Allegation of Damages.

An agent, in an action against bis principal for commissions, is not entitled, to an examination of bis employer’s books for the sole purpose of alleging damages in bis complaint, since he is entitled to allege bis damages in an arbitrary sum, and recover any sum within the amount alleged.

Appeal from special term, Hew York county.

Action by Martin J. Stanton against Solomon Friedman and Edwin Mayer to recover commissions for goods sold by plaintiff while in defendants’ employ. From an order granting plaintiff's motion for a discovery and inspection of defendants’ books and papers to enable him to frame his complaint, defendants appeal.

Reversed.

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

L. Bronner, for appellants.

J. T. Booth, for respondent.

It seems to us that the order appealed from was not necessary to enable the plaintiff to frame his complaint. It may he true that, after the issues are joined, it may he necessary for the plaintiff, before the trial, and in preparation therefor, to have an examination of the defendants, at which they could be required to produce their books, and to furnish therefrom the information necessary to establish the damages claimed by the plaintiff. But it is by no means necessary that he should be in possession of the entries in the books in order to set out his cause of action. The case of Tayler v. Ribbon Co., 38 App. Div. 144 , 56 N. Y. Supp. 677 , gives clearly the reasons why such a discovery and inspection are not necessary prior to the service of the complaint.

The order appealed from should he reversed, with flO costs and disbursements, and the motion denied, with $10 costs. All concur.

Cases cited

Tayler v. American Ribbon Co. 38 App. Div. 144 N.Y. App. Div. 1899-03-10 p. 291