Dannenberg v. Heller

Full title: ROBERT L. DANNENBERG, Respondent, v . SAMUEL HELLER, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 1, 1903

88 App. Div. 548 (N.Y. App. Div. 1903)

85 N.Y.S. 90

Opinion

December Term, 1903.

Nathaniel Cohen, for the appellant.

Abraham A. Silverberg, for the respondent.

Present — VAN BRUNT, P.J., O'BRIEN, INGRAHAM, McLAUGHLIN and HATCH, JJ.

PER CURIAM:

The plaintiff alleges that he was employed as a salesman to sell the defendant's wares, and that he was to receive for his services a certain percentage of the amount of the sales. He states that a discovery and inspection of certain of the defendant's books are necessary in order to enable him to frame his complaint. The plaintiff's petition, upon which his application was passed, is insufficient in failing to show that he is not possessed of all the facts for which the inspection is sought.

It is seldom, in a case like this, that such an application for the purpose of framing a complaint is granted, because, as a rule, it is unnecessary, the plaintiff ordinarily being in a position to frame his complaint, though he may subsequently need the information or the evidence to sustain it upon the trial. Thus in Martin v. New Trinidad Lake Asphalt Co. ( 87 App. Div. 472) it is said: "That the plaintiff may be entitled at the proper time to an inspection and discovery to enable him to obtain evidence necessary to prove the amount he may be entitled to recover upon a trial, may be true, but it is not necessary that he should have such inspection and discovery at this time simply for the purpose of enabling him to state in his complaint what damages he demands. ( Tayler v. American Ribbon Co., 38 App. Div. 144; Brummer v. Cohen, 47 id. 470.)"

Here, however, we need not pass upon the question of whether the plaintiff has presented an exceptional case entitling him at this stage to an examination of the defendant's books, because it appearing that there is no statement in the petition from which the inference can fairly be drawn that he does not possess the information requested, the application should have been denied.

The order, accordingly, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

PER CURIAM:

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.