136 N.Y.S. 197 | N.Y. App. Div. | 1912
This action was to recover the balance of salary due to the plaintiff under a written contract by which the plaintiff was employed for the years 1908 and 1909 and was to receive as salary three per cent of the net profits of the business of the defendants for each of said years, the defendants guaranteeing that plaintiff should at least receive $6,000 each year. For the year 1908 the plaintiff was paid $11,847.31 which would show a net profit for that year of nearly $400,000. For the second year, although the plaintiff swears that the business had continued without substantial decrease, the defendants claimed that their profits were not in excess of $200,000, and refused to make any payment above- the $6,000, which the plaintiff was paid. The plaintiff alleges that the profits for the year 1909 were in excess of $400,000, and .that he was entitled to receive $6,000 in addition to the amount that was paid him as salary for that year.
The mere statement of this cause of action is sufficient to establish that the only method the plaintiff has of proving his cause of action is to examine the defendants before trial. The plaintiff has no records of the defendants’ business, and the defendants alone can supply the legal proof to show what their net profits were for the -year 1909 to which the plaintiff was entitled to a percentage. The plaintiff cannot maintain an
One of the few objections to these orders which has survived is that it is necessary that it should appear from the affidavit that the party applying for the examination of his adverse party intended to use the deposition upon the trial of
It follows, therefore, that the order appealéd from must be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendants denied, with ten dollars costs.
Laughlin, Clarke and Miller, JJ., concurred; Dowling, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.