117 N.Y.S. 534 | N.Y. App. Div. | 1909
The complaint in this action alleges the making of two separate agreements, by which the defendant agreed to accept an option to purchase the capital stock of a gold, mining company, to market the stock and to divide the profits derived thus equally with the plaintiff. The agreement provided that the defendant should, “ every three months furnish the party of the second part a summary statement showing the ambunt of gross profits on the sale of the said stock, the amount of expenses, the amount of commissions, the amount paid on account of advances or loans, and interest, and the amount of net profits then appearing; ” and there was to be a final accounting on August 28, 1909. The complaint alleges that the parties proceeded under this agreement; that the defendant had neglected, refused and failed to furnish the plaintiff every three
It is not alleged in the complaint that the plaintiff has sustained damage in the amount of $250,000, or any other sum. The answer' admitted the making of the contract and set up several defenses aiid counterclaims, to which the plaintiff replied.. After the commencement of the.action the defendant served upon the plaintiff what lie alleged to be an account of his transactions under the contract. The defendant then made a motion to refer the issue to hear and determine, which motion was denied, whereupon the plaintiff made an application for a discovery of' the defendant’s books and papers, alleging as a reason therefor that lie had no means Of ascertaining whether or not the account furnished by the defendant was correct, and whether or not all the items included in said account were incurred in connection with the defendant’s operations and transactions under his contract with the plaintiff, except by a discovery and inspection of the books, papers and vouchers of the defendant. This motion was denied and from the order entered denying the motion the plaintiff appeals.
The main object of this, action is for an accounting. If such an accounting is ordered the defendant will be compelled to file his account of the transactions as between the parties under the contract, and the court, by an interlocutory judgment, will make the
The order appealed from is, therefore, affirmed, with ten. dollars costs and disbursements.
McLaughlin, Houghton and Soott, JJ., concurred ; Clarke, J., dissented.
Order affirmed, with ten dollars costs and disbursements.