Mehesy v. Kahn — 50 N.Y. Super. Ct. 209

Majority

p. 209

ELIZABETH M. MEHESY, Appellant, v. HIPPOLYTE KAHN, et al., Respondents.

Headnote

Order for inspection of boolcs, etc.—when granted

The granting of power to search through the books of account to find isolated entries not particularized, to enable plaintiff to frame his complaint, rests in the discretion of the court, and it should only be allowed where the purpose and necessity of such examination are apparent.

According, where in an application for an order to examine defendants’ books to ascertain the names of persons to whom defendants had sold certain merchandise in contravention of their agreement to sell only to plaintiff, in order to enable plaintiff to frame the complaint, the petition alleges that defendants did so sell to other persons,—Held, that the application should not be granted; that the knowledge or information which enabled plaintiff to make this distinct and definite statement, was enough to enable plaintiff to frame her complaint.

p. 210

Decided March 21, 1884.

Before Sedgwick, Ch. J., Freedman and O’ Gorman, JJ.

Appeal from order of special term denying petition of plaintiff for inspection and copy of entries in account books of defendants in order to ascertain the names of the persons to whom defendants had sold'“hare bellies,” in violation of their agreement with the plaintiff, and in order to enable the plaintiff to frame her complaint.

Simpson & Werner, for appellant.

The discovery sought is material and necessary, and in the present case absolutely indispensable. 1. Its materiality appears by reference to the written contract. The defendants contracted to give their entire product of bellies during the period mentioned, and that they did not do so is shown by the petition presented. 3. Its necessity is shown by the allegations that the names and amounts are recorded in the books named, during the period designated, and that the petitioner “has no means whatsoever, outside of said books, of discovering or determining the amount of hare bellies which the defendant had or obtained, or parted with and sold and delivered to parties other than your petitioner, and in violation of the contract,” and this after the positive averment that the defendants did sell and deliver to other parties in violation of the contract. The plaintiff cannot possibly prepare a complaint, and truthfully verify it, as required by statute, without a disclosure, and if a complaint were by any possibility framed and served, the cause of action could be readily defeated by an application on the part of the defendants for a bill of particulars.

Benno Loewy, for respondent.

There are many reasons why the decision of the special term should not be disturbed.

The granting the order applied for was very much within the discretion of that court, and we see no reason to believe that such discretion was not properly exercised in this instance.

p. 211

The plaintiff states in her verified petition, that the defendants did sell largely to other persons, and offered her the refuse after such sales of the best material. If she is possessed of knowledge or information sufficient to enable her to make this distinct and definite statement under oath, there can be no difficulty in framing a complaint calling for a definite verified answer to that allegation.

The power to search through the defendant’s account-books in order to find isolated entries, not particularized, to enable the plaintiff to frame a complaint, is open to great abuse and should only be granted where the purpose and necessity of such examination are apparent. At a later stage of the proceedings, when the issues between plaintiff and defendants shall have been developed, other appropriate measures can be taken by the plaintiff to obtain the information now sought, if it be found to be then necessary.

The order appealed from is affirmed, with ten dollars costs.

Sedgwick, Ch. J., and Freedman, J., concurred.