Opinion
December 30, 1915.
Andrew F. Van Thun, Jr., for the appellant.
J. Noble Hayes, for the respondent.
We have already held that on March 6, 1909, defendant Lewis forcibly ousted plaintiff from the former place of business of Lewis Frear, so that Lewis must account for the assets and good will of that firm which he appropriated. ( 166 App. Div. 210.) A referee has been appointed to take proof of such value.
Defendant since organized the firm of Lewis Gendar, which carries on the fire insurance business at the same place. It is claimed that the new firm has reaped the benefit of the good will of the firm of Lewis Frear by means of the patronage it received from the former customers of Lewis Frear. In order to prove the extent of such good will plaintiff has obtained an order for inspection of the books and papers of Lewis Gendar. The order appealed from commands defendants to permit an inspection of all the books and papers of Lewis Gendar, showing all the fire insurance business by that firm from March 6, 1909, with or through the former customers of Lewis Frear, including the ledger, cash book, expiration book, account-current book, and all other books, which will throw light on the business done and the value of the good will of Lewis Frear.
Clearly this is too broad. If defendant Lewis, through his new firm of Lewis Gendar, is now taking risks from the old customers, that fact may readily be shown upon the reference. Plaintiff as a business competitor should not be allowed the advantage of going through the expiration book and other records of the new firm, to gain information of the premium rate and the dates when such business will expire, so as the better to obtain a basis for competition. Such search through the books is needless at this time for the purposes of this reference, since by subpœna duces tecum the requisite books may be produced, and made the subject of inquiry in the hearings before the referee. ( Cohen v. Rothschild, 162 App. Div. 611.) The scope of the order should, therefore, be limited to the books and papers of the old firm of Lewis Frear.
The order as thus limited to the books and papers of Lewis Frear should be affirmed, but without costs.
JENKS, P.J., CARR, STAPLETON, MILLS and PUTNAM, JJ., concurred.
Order limited in accordance with opinion per curiam, and as so modified affirmed, without costs.