Opinion
January, 1924.
Order in so far as it denies plaintiff's motion for defendant's examination "regarding the amounts realized by the defendant as set forth in paragraphs `p' and `q' and as requests the production of books" reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order in so far as it grants plaintiff's motion for examination of defendant affirmed, with ten dollars costs. While the action is characterized as one for an accounting, the complaint, in its essential features, sets forth a cause of action solely for one-half the moneys earned by both parties (so plaintiff claims) as commissions, and the whole of which was paid to the defendant. All of the matters alleged as false representations and wrongful conduct on the part of the defendant have relation solely to plaintiff's anticipation of the defense of a general release and its avoidance, and might well have been reserved for interposition by way of reply. The action is in no manner one for an accounting. The examination, in so far as it concerns the amount of money received by the defendant, is solely to ascertain that amount, and to this end defendant's books bearing thereon may be material. The production of the books of an individual in aid of an examination before trial is now permitted. (Civ. Prac. Act, § 296.) Kelly, P.J., Jaycox, Manning, Young and Kapper, JJ., concur.