Greenbaum v. Samson

255 A.D. 935 | N.Y. App. Div. | 1938

Order modified on the law and the facts and as modified affirmed, without costs of this appeal to any party. Memorandum: In our opinion a proper ease is made out by the plaintiff for an inspection and discovery of the defendants’ books so far as they relate to sales -within the period specified in the complaint, but on the affidavits presented by the defendants it seems that the “ sales books or records ” will furnish all the information necessary as to the matter of sales as to both alleged causes of action. A roving examination must be avoided if possible. As to the second cause of action particularly, the letters of the plaintiff seem inconsistent with the claim for a definite percentage of the profits and for that reason we are limiting the inspection and discovery and the examination of the defendants to the terms of the contracts and to the sales made by the plaintiff and the sales on which he is entitled to commissions according to the allegations of the complaint. On a further application to be made after the conclusion of the presently ordered inspection and examination, the plaintiff may show himself entitled to a further inspection and discovery and to a further examination of the defendants. All concur. (The order grants a motion for an examination before trial, in an action to recover commissions.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.