Opinion
April, 1935.
Order directing the defendant, by its managing agent, to appear for examination before trial as an adverse party reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. This action is to recover damages for the breach of an alleged contract whereby the defendant employed the plaintiff as sales representative within certain territory. Plaintiff seeks to examine the defendant as to the volume of business which was done in the territory in question during the alleged term of the contract. Such examination should be granted only if the contract relied on creates an exclusive agency, which exclusiveness should be alleged in the complaint. Since that is not the theory of plaintiff's cause of action, it may not be supplied by way of affidavit for the purpose of obtaining an examination before trial. Lazansky, P.J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.