Harry Brick, Respondent, v. Carl Shaff and Moses Brody, Appellants

Harry Brick, Respondent, v. Carl Shaff and Moses Brody, Appellants. First Department, October 23, 1908. Discovery r- examination to frame complaint — damages. A plaintiff is not entitled to examine the defendant before action brought merely to enable him to allege the exact amount due. Appeal by- the defendants, Carl Shaff and another, 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 1st day of June, 1908, denying the defendants’motion to-vacate an order for the examination of the defendants before action brought. Louis Jersawitz, for the appellants. Jonah, J. Goldstein, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : Plaintiff sues for commissions- upon sales made for defendants. Among other things he claims to he entitled to commission upon duplicate orders. He knows the amount of direct orders he obtained, but alleges that between January 1, 1907, .and November 4, 1907, a number of duplicate orders were received and filled by defendants and that he does not know the exact amount du.e him, and cannot allege the same with certainty. We have uniformly refused air examination, before complaint merely,to enable the ¡ilaintiff to allege the exact ainount due him and we see no reason for departing from the rule in this case. ' The order should be reversed, with ten dollars costs and disbu rse- ■ ments, and motion granted, with ten dollars costs. Present — Patterson, P. J,, Ingraham, Laughlin, Clarke and. Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted,, with ten dollars costs.