Opinion
November 12, 1940.
On the court's own motion, the decision of this court handed down October 21, 1940 [ ante, p. 880], is amended to read as follows: Action to recover compensation for services of the plaintiff as sales manager. Order granting a discovery and inspection modified by striking from the second ordering paragraph the words "Spielman Motor Sales Co., Inc., and" and inserting after "October, 1938," the following: "and Spielman Motor Sales Co., Inc., for the term commencing November, 1937, and ending October, 1938,". As thus modified, the order is affirmed, without costs, the examination to proceed on five days' notice. Plaintiff is entitled to discovery and inspection ( Clynne v. Scharf Bros. Sons, Inc., 213 App. Div. 286, 288) only in reference to those causes of action where his employment contract provided that he should share in profits or where his compensation was contingent upon profits. ( Clynne v. Scharf Bros. Sons, Inc., supra; Thomas v. Waite Co., 113 App. Div. 494; Lockwood v. Bedell Co., 178 id. 695; Gemson v. Perreault, 201 id. 649; Burns v. Lipson, 204 id. 643; Fey v. Wisser, 206 id. 520.) The modification directed eliminates discovery and inspection as to the causes pleaded in which profits are not thus involved. Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.