Opinion
May 10, 1948.
In an action for an accounting of the proceedings of an alleged joint venture, etc., order directing examination of the defendant before trial modified by striking from items of examination numbers 9, 10, and 11, all except the following language: "(9) That at no time has plaintiff been paid any portion of the profits or any compensation for the service he has rendered; (10) That subsequent to the 1st day of October, 1945, plaintiff devoted himself to the operation of the said Albia Box and Paper Company without compensation or reimbursement for actual expenses; (11) That the defendant suggested to the plaintiff that the plaintiff form a corporation to function as a jobbing corporation to which the said Albia Box and Paper Company would supply a substantial quantity of box board; and thereafter defendant refused to cooperate with the plaintiff in the formation of the said jobbing corporation." As thus modified, the order is affirmed, without costs; the examination to proceed on five days' notice. The examination upon the deleted matter should not have been ordered in advance of plaintiff's establishing his right to an accounting. ( Koerber v. Rutherford, 262 App. Div. 869.) It appears, by concession, that the order is not to be interpreted as requiring production of the books, records, etc., of the corporation, which is not a party to the action. Lewis, P.J., Johnston, Adel, Sneed and Wenzel, JJ., concur.