Opinion
September 28, 1949.
Appeal from Supreme Court.
Present — Foster, P.J., Heffernan, Brewster, Deyo and Santry, JJ.
The complaint alleges two causes of action; one for an accounting pursuant to terms of a contract for employment, and the other for recovery of commissions. It is conceded that between January, 1940, and March, 1947, plaintiff was in defendant's employ, selling merchandise on commission. Plaintiff has the burden to show the quantity of merchandise sold and the commission to which he claims to be entitled. He alleges that he kept no records but that defendant's records show the sales made and commissions which the plaintiff claims to be due him. The Special Term properly granted the application. Order affirmed, with $10 costs and disbursements. If the parties cannot agree as to the time and place of the examination, then either party may apply on two days' notice to Mr. Justice NEWMAN to determine the question.