Parks v. Gates

54 A.D. 512 | N.Y. App. Div. | 1900

O’Brien, J.:

Upon proving the agreement and that there were profits, the plaintiff would be entitled to the relief asked, namely, an accounting. If the action is not in fact by one partner against another, then, assuming that the allegations of the complaint can be sustained, it is so similar that the rules and methods of procedure adopted in partnership actions may be applied.

Here it is essential that the plaintiff should obtain the evidence necessary to prove the alleged agreement, and that out of the project to which it related profits arose; and upon establishing those facts he would be entitled to an interlocutory judgment for an accounting. It being shown by the affidavits that the evidence required to prove the primary facts relating to the agreement and the profits is peculiarly within the knowledge of the defendant, whose testimony — he .being a non-resident — cannot with certainty be secured upon the trial, we think the plaintiff is entitled to an examination for the purposes stated, i. e., to prove the agreement and resulting profits.

If the plaintiff does not succeed in proving these facts his complaint will be dismissed; but until he has shown upon the trial that he is entitled to the relief demanded he should not be at liberty to examine the defendant with regard to the details of the profits; or, in other words, to have an accounting concerning profits- which, as it may turn out, the defendant may have made in an enterprise in which the plaintiff has no interest. If the defendant will stipulate in a general way that there were profits, the particulars of which can- he inquired into upon the accounting, should the plaintiff succeed-in proving the agreement as alleged, then the order herein should be modified by confining the examination to the eliciting of facts, tending to prove the agreement. Upon such a stipulation being given the order should be modified in accordance' therewith,, without costs to either party in this court, but upon the defendant’s failure or refusal to give the stipulation, the order appealed from, should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Rtjmset, Patterson and McLaughlin, JJ., concurred.

Upon defendant stipulating as stated in opinion, order modified as therein directed, without costs to either party; if such stipulation be not given, order affirmed, with ten dollars costs and disbursements.