20 Misc. 2d 84 | N.Y. Sup. Ct. | 1959
This action is for commissions earned as a selling agent, and is based on all the merchandise shipped by the defendant on orders accepted during the life of the agreement in the area in which the plaintiff represented the defendant.
The plaintiff now moves for discovery and inspection of all account books, vouchers, order books, shipping invoices and other records and ledgers of the defendant for the period from January 2, 1958 to July 1, 1959.
It is established that there is no right to a discovery and inspection when the commissions do not depend on profits (Clynne v. Scharf Bros. & Sons, 213 App. Div. 286 [2d Dept.]; Ortman v. Beiley, 160 App. Div. 258). The remedy, if any, is by examination before trial. The cases cited by the plaintiff, Shargel v. Gulland (52 N. Y. S. 2d 142) and Selwyn v. Walter Topographic Serv. (246 App. Div. 766), merely authorize examinations before trial.
Generally, a discovery and inspection is not allowed unless it appears that an examination before trial has been inadequate (Conte v. City of New York, 12 Misc 2d 366; Battaglia v. New York City Tr. Auth., 2 A D 2d 985 [2d Dept.]).
Furthermore, even if otherwise authorized, the motion must be denied. Section 324 of the Civil Practice Act only authorizes discovery and inspection as to things 1 ‘ relating to the
The motion for discovery and inspection is denied.
Order signed.