Opinion
April, 1895.
Avery F. Cushman, for appellant.
George Hahn, for respondent.
Upon an agreement entitling him to a percentage on purchases by the defendant, the plaintiff sues to recover the amount so due him. And as he "has no means of knowing what purchases were made by the defendant, and so is unable to state the amount to which he is entitled," the plaintiff, in order to an appropriate prayer for relief, moved for "an inspection of all books, documents and other papers relating to the merits of this action" in the possession or under the control of the defendant.
In compliance with the motion, the defendant was directed to deposit with his attorneys and permit the plaintiff to inspect "his ledger and sales book containing entries in reference" to the purchases by defendant. On appeal from such order the defendant impugns its validity on several grounds.
First, it is objected that "the petition does not state facts sufficient to warrant the order," because since, by subdivision 3, section 481 of the Code, the demand for judgment may be for any sum "to which the plaintiff supposes himself entitled," it is not necessary that he name the exact amount of the recovery. In Veiller v. Oppenheim, 26 N.Y.S. 1051, 1053, Judge O'BRIEN, with the concurrence of VAN BRUNT, P.J., and FOLLETT, J., exploded a like criticism thus: "In an action at law it will be necessary for the plaintiff to state the amount which he seeks to recover, and, unless such amount can be ascertained from an inspection of the books, plaintiff will not be in a position to know just what sum he is entitled to sue for."
Again, defendant objects that it is not apparent that the plaintiff "has exhausted all means of information at his command." Nevertheless, it is the fact that he explored without result the one source of intelligence open to him; and how futile would have been an application to the defendant is sufficiently evinced by the stubborn resistance to the present motion.
Again, it is urged that the order is invalid because "neither the petition nor the notice of motion specifies the particular books or documents which the plaintiff desires to examine." But the order designates the ledger and sales book; so that the exorbitant demand in the notice of motion is denied, the generality of the moving papers is reduced to a particular by the order, and nothing more is exacted of the defendant than would have been allowable had plaintiff's papers been technically precise.
Still again, defendant objects that "the petition is not verified in accordance with the rule of court;" but wherein it is defective the brief does not apprise us. Rule 15 merely requires that "the moving papers be verified by affidavit;" and plaintiff's petition is authenticated by just such a verification.
Finally, the defendant complains "that the application is not made in good faith, but is a pure and simple fishing excursion." "Bad faith" and "fishing excursion" is the uniform answer to applications for discovery; and were the answer sufficient the relief would be unattainable. The petition, to which defendant refers us for proof of his imputation, suggests to us no suspicion of sinister motive in the application.
If the adjudication in Veiller v. Oppenheim, supra, be not conclusive as authority upon this appeal, the opinions of BARRETT and O'BRIEN, JJ., are convincing as argument.
Order affirmed, with costs and disbursements.
BISCHOFF and GIEGERICH, JJ., concur.
Order affirmed, with costs and disbursements.