Benson H. Pierce, Respondent, v. McLaughlin Real Estate Company, Appellant

Benson H. Pierce, Respondent, v. McLaughlin Real Estate Company, Appellant. Second Department, October 4, 1907. Practice — accounting — examination to frame complaint denied. In an action by an agent for an accounting of commissions due on sales, an examination of the. defendant for the purpose of framing the complaint is not necessary, for the plaintiff need only show that he is.entitled to an accounting. The filing of the account itself is a matter for the interlocutory judgment. • Appeal by the defendant, the McLaughlin--Real Estate Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk A the county of Kings on the 7th day of May, 1907, denying the defendant’s motion to.vacate an ex parte order for the examination of the defendant and the president thereof to enable, the plaintiff'to. frame his complaint. - James P. Judge [Martin W. Littleton with him on the brief], for the appellant. Albert A. Hovell, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The plaintiff does not state in his- affidavit what kihd of-an- action he has. brought by the service of the summons. It may be gathered from such-affidavit that it is' a suit for an accounting. It states that the plaintiff had an oral agreement with the defendant to-got purchasers of real estate owned or controlled' by it, the'■'plaintiff to be paid a percentage of the net profit -the"defendant should realize on the real estate thus sold, and that many sales were made -by- the plaintiff. Ho examination is necessary -to frame a complaint for an accounting. If the defendant be under the duty to account to the plaintiff, and refuses to do so, as 'the- plaintiff’s affidavit' alleges, then all that the plaintiff needs to' do is to frame a bare and lean •complaint showing that he is entitled to an accounting. Then the course is to obtain' an interlocutory judgment that the defendant file an account. The practice following- that is equally familiar to the profession. The plaintiff wants to get the. account before he serves a complaint. ' The order should be reversed. Hirsohberg, P. J., Hooker, Rich and Miller,. JJ., concurred. ■ Order reversed,, with tep dollars costs and disbursements, and motion granted, with costs. ' . ' ■ '