Ruberry v. Binns — 18 N.Y. Super. Ct. 685

Majority

p. 685

Ruberry v. Binns and Halsted.

Headnote

1. On an application for a discovery of books, in order to enable the plaintiff to prepare his complaint, if it appear that the plaintiff is seeking to recover moneys received by the defendants, as his factors and agents, selling his goods, and they have not rendered accounts of sales in full, the Court will order them to render such account or give a copy of their book showing such sales from the time of the last account of sales rendered. The plaintiff, upon those facts, is entitled to such account of right.

2. But under color of an application for such a purpose, the plaintiff is not entitled to examine the defendants’ books at large, or to have copies of them, for the purpose of seeing whether they conflict with the accounts of sales heretofore rendered.

(Before Woodruff, J.)

At Special Term; March 10th, 1860.

The plaintiff herein having commenced this action by service of the summons, applied by motion to compel the defendants to produce their books of account and submit them to the plaintiff for his inspection, or to furnish the plaintiff sworn copies of so much and such parts of their books as contained any memorandum or entry relating to goods consigned to them, as the factors and agents of the plaintiff, for sale; and the ground on which the discovery was sought was, that the defendants were such agents and factors, that the action was brought to recover from them the property and proceeds of sales, and that the discovery is necessary to enable the plaintiff to frame his complaint in this action.

The defendants showed, in opposition, that they had rendered full and detailed accounts of all sales made down to July, 1859.

Weeks & Be Forest, for the plaintiff, in support of the motion.

J. B. & T. B. Sherwood, for the defendants, in opposition thereto.

As the agents or factors of the plaintiff, the defendants are bound to render accounts of goods sold and moneys collected, and the right of the plaintiff to have such an

p. 686

account, upon the facts stated in the affidavits on both sides, admits of no controversy; and it is reasonable that the plaintiff should" have the information which such an account would furnish, before he is compelled to frame his complaint.

But there is no necessity that he should be permitted to examine the defendants’ books at large. He can frame his complaint without any such aid.

He presumptively knows what goods the defendants have-received. He has received accounts down to July last. He is not entitled to a discovery for the purpose of exploring the books to see whether perchance he may not discover something in conflict with the accounts rendered.

The defendants must furnish a sworn statement of all sales made and moneys collected since the 1st of July last, or produce and deposit with the clerk of the Court such of his books as will show those sales and receipts.

Costs of motion, $10, to abide the event.