Opinion
May 3, 1940.
Appeal from Supreme Court of New York County, PECORA, J.
Louis Braun, for the plaintiff-appellant.
Present — MARTIN, P.J., TOWNLEY, DORE, COHN and CALLAHAN, JJ.
Plaintiff is suing for damages for unlawful discharge under a contract whereby he claims he is entitled to receive a percentage of the profits realized by the defendant company in one of its departments. The question presented is whether he is entitled to an examination before trial, or a discovery concerning said profits.
Plaintiff has gone into business with a competitor. Under the circumstances, the Special Term was correct in denying a discovery of defendant's books, but plaintiff was entitled to a limited examination to determine whether any profits existed, and, if so, the amount thereof. Otherwise plaintiff will be unable to prove his case. (See Oppenheimer v. Van Raalte, 151 App. Div. 601; Singer v. National Gum Mica Co., 211 id. 758.)
The orders appealed from should be modified by granting item 10 to the extent of permitting an examination before trial concerning matters set forth therein, and requiring the defendant Mendelsohn to produce necessary books and records for use on said examination, pursuant to the provisions of section 296 of the Civil Practice Act, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant.
Orders unanimously modified by granting item 10 of plaintiff's notice of motion to the extent of permitting an examination before trial concerning matters set forth therein, and requiring the defendant Herman D. Mendelsohn to produce necessary books and records for use on said examination, pursuant to the provisions of section 296 of the Civil Practice Act, and as so modified affirmed, with twenty dollars costs and disbursements to the appellant. The date for the examination to proceed to be fixed in the order. Settle order on notice.