79 A.D. 626 | N.Y. App. Div. | 1903
The plaintiff commenced this action to recover the balance due for services rendered under a contract between the plaintiff and the defendant. The plaintiff’s firm had “ purchased and sold, cleared and-carried ” for the defendant stocks, bonds, wheat and silver certificates, and advanced moneys, at the request of the defendant, under an agreement by which the plaintiff’s firm was to be paid a commission and interest upon advances made, the plaintiff claiming that there is a balance due him of upwards of $13,000. The summons and com
. We think this petition fails to state facts which" would justify the court in requiring the plaintiff to submit for the examination by the defendant and' his accountants all his books and papers containing all entries of his transactions for others. The plaintiff seeks to recover a balance due from the defendant, and upon the trial he must prove all of the transactions between himself and the defendant, and the transactions that were made on account of the defendant,
We think, therefore, that the application should have been denied.
The defendant claims that the notice of appeal is not sufficient. It seems that an order was originally entered which the court, upon notice, resettled, and the appeal is from the order “ entered herein on the 21st day of April, 1902, as. resettled by the order entered herein on the 2d day of December, 1902, and from each and every part thereof.” This is clearly sufficient to bring up for review the whole order as resettled, and ¡there is no basis for the claim made by the respondent 'that the plaintiff has only appealed from that portion of the order of December 2, 1902, which resettles the order of April 21, 1902. The effect of the resettlement of the order' was to vacate the order originally granted and to substitute in place thereof the order as resettled. The notice of appeal from the order as resettled would have been sufficient to present that order for review, and it is that order resettling the prior order from which the appeal is taken.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion' denied, with ten dollars costs.
Van Brunt,. P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and- disbursements, and motion denied, with ten dollars costs.
FTote. — The rest of the cases in this term will he found in the next volume, 80 App. Div.— [Rep.