George W. Tayler, Respondent, v. The American Ribbon Company, Appellant

George W. Tayler, Respondent, v. The American Ribbon Company, Appellant. Discovery — action to recover commissions on sales—what facts'clo not establish a .' right to examine the defendants boohs. In an action for the "breach of a contract for the payment of commissions upon sales of merchandise made by the defendant, an order directing the defendant to deposit with the county clerk, -for six days, its salés books, cash books and all other books of account., showing the sales made by it during a certain period of time, to enable the plaintiff with his attorney to examine and take copies of the entries of such sales in said books, should not be granted where the moving affidavits show that the plaintiff already has all the information necessary to frame his complaint, and that the only pretext upon which further information could be required, is to enable him to state the amount of damages claimed. Appeal by the defendant,'The American Ribbon Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office'of the clerk of the county of New York on the 25th day of November, 1898, directing the defendant to deposit its sales and cash books and all other books of account showing the sales made by the said defendant from March 19,1898, to November 'I, 1898, with the clerk of the county of New York for a period of six days, to enable the plaintiff to examine and take copies of the entries contained in said books. Herma/n Herst, Jr., for the appellant. Frederick Wiener, for the respondent. [MAJORITY — Patterson, J. :] Patterson, J. : By the order appealed from herein, the defendant was required to deposit in the office of the county clerk of New York its sales and cash boobs and all other books of account showing sales made by it during a certain period of time, and the direction was made that such books so remain on deposit for six days, to enable the plaintiff, “ with his attorney or any other necessary assistants,” to examine and take copies of the entries of such sales in said books. This order was granted upon a motion made for a discovery, to enable the plaintiff to prepare his complaint. The affidavits presented by the plaintiff on that motion showed that, his action is for a breach of a contract for the payment of commissions upon sales of merchandise made by the defendant. The plaintiff shows beyond doubt that he already has all the information necessary to make the allegations in a complaint proper to such an action. He has stated his cause of action as completely in his affidavits as it can be stated. The only possible pretext upon which further information could be required is that the plaintiff may state the amount of damages he claims. This order, so sweeping in its character, has been made only to enable the plaintiff to insert the ad damnum in his complaint. There is no rule of pleading requiring that to be stated with accuracy. The plaintiff may name an arbitrary amount and recover within it. It is improper, to say the least, to allow a roving examination through the defendant’s books; to deprive it of the possession of those books; to compel it to deposit them, and to subject it to the inconvenience of such an order, when there is no real need for such a course. The contents of the petition and affidavit of the moving party do not show, within rule 14 of the Supreme Court, the necessity for all these books to be taken from the possession» of the defendant, nor are the technical requirements of that' rule complied with. It has been held,, in applications of this character and on a motion for a discovery to enable a party to frame a complaint, that there is no absolute right on the,part of a plaintiff to have an - examination of a defendant’s books, and that where it is apparent that such an inspection would be a great hardship, an order of that description will not be granted unless it is .absolutely necessary. (Ward v. N. Y. Life Ins. Co., 78 Hun, 363.) The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for a discovery denied, with ten ' dollars costs. O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., concurred in result. ■ Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.