Opinion
November, 1905.
Order modified as directed in opinion and as modified affirmed, without costs.
The affidavit upon which this motion is made alleges that the plaintiff executed and delivered to the defendant nine policies of liability insurance insuring the defendant against loss from liability for damages for injuries as therein provided. Each of these policies contained a provision that "The premium is based on the compensation to employees to be expended by the assured during the period of this policy," with a provision that if the compensation actually paid exceeds the sum stated in the schedule, the assured would pay additional premiums; and also a provision that "The company shall have the right and opportunity, at all reasonable times, to examine the books of the assured so far as they relate to the compensation paid to his employees, and also to inspect the plant, works, machinery and appliances used in his business. The assured shall, if requested, furnish the company with a written statement of the amount of such compensation during any part of the policy period, under oath if required." It is further alleged that the defendant never made a statement of the compensation to its employees during the period covered by the policy, or any of them, except that it had advised the plaintiff that the payrolls did not exceed the amount of the payrolls given as estimated payrolls in preceding policies. It is then alleged that the defendant has expended much larger sums in compensation to employees than the amounts stated in said policies; that there is now due and owing to the plaintiff a large additional premium on each of said policies of insurance, and this action is brought to recover such additional premiums. The plaintiff asks to be allowed to examine the books of original entry of the defendant showing the compensation paid by it to employees during the period covered by these policies. Upon this affidavit the court ordered the defendant to deposit with the clerk of the court "its cash books, time books, time sheets and all other books of original entry, and papers showing the amount of compensation paid by the defendant, individually and as agent, to employees during the period from October 28, 1896, to October 28, 1901," or, in lieu thereof, allowing the defendant to retain these books at its office, in which case it shall allow the plaintiff's attorney to inspect and copy them. The order also contains a provision restricting the defendant, its employees and agents, from removing, destroying or in any way interfering with said books until the expiration of the time allowed for such inspection. I think this order should follow the clause in the policy giving to the plaintiff the right to examine the defendant's books. It should require the defendant to deposit its books, so far as they relate to the compensation paid to its employees. There is nothing in the record to show that the defendant has possession of any papers that relate to this subject. The last clause of the order which enjoins the defendant and its employees from destroying or in any way interfering with these books, papers and documents should be stricken out. I know of no authority for granting such an injunction, especially where there is no suggestion made that the defendant has threatened to do so, or is about to do any such thing. The order as thus modified should be affirmed, without costs. O'Brien, P.J., Patterson, Laughlin and Clarke, JJ., concurred.