Edmonds v. Attucks Music Pub. Co. — 102 N.Y.S. 636

Majority

p. 636

(117 App. Div. 486)

EDMONDS v. ATTUCKS MUSIC PUB. CO.

(Supreme Court, Appellate Division, First Department.

February 8, 1907.)

Headnote

Discovery—Inspection oe Books.

In an action for services rendered by the plaintiff to defendant as its general manager, the answer sets up a counterclaim of 50 odd items of money, which it alleged the plaintiff misappropriated, and which presumably appear on defendant’s books. Plaintiff moved the • court for an order for inspection of these books. Held, that as the inspection, under such circumstances, was as much for the benefit of the trial court as for plaintiff, the court erred in denying the motion.

Appeal from Special Term, New York County.

Action by Shepard N. Edmonds against the Attacks Music Publishing Company. From an order granting defendant’s motion to be relieved from a stipulation respecting the examination of certain books and papers, and denying plaintiff’s motion for such inspection, plaintiff appeals. Reversed and remanded.

Argued before PATTERSON, P. J., and McEAUGFILIN, IN-GRAHAM, LAUGHLIN, and HOUGHTON, JJ.

p. 637

Charles Goldzier, for appellant.

Benno Loewy, for respondent.

Counsel formerly representing the defendant had stipulated orally with counsel for plaintiff that certain books and papers of the defendant might be examined without an order or that in case of necessity an order so to do might be entered, which latter course was pursued. Meantime, however, defendant had changed attorneys and moved to be relieved from this stipulation and order, to which motion plaintiff replied by asking that the order stand or that a new order for inspection be made. The court set aside the former stipulation and order and denied plaintiff’s motion for inspection.

The action is for services rendered by the plaintiff to defendant as its general manager in.the music publishing business. The answer, in addition to the denials, sets up a counterclaim of 50 odd items of money, specific dates and amounts of which are given, which it is alleged the plaintiff misappropriated, aggregating in all the sum of $2,745.81. The particularity with which these items are set forth indicates that presumably they must appear upon defendant’s books of account, and such is claimed to be the fact. The consent of defendant’s former counsel that plaintiff might examine defendant’s books would seem to have been entirely proper. Such inspection would necessarily facilitate the trial by determining what could be admitted and what would be controverted. There are a large number of items and an inspection under such circumstances is as much for the benefit of the trial court as for the party himself, for it tends to eliminate uncontested issues. The fact that there have been two mistrials without inspection is not a reason for now withholding it. On the contrary,' it may tend toward the bringing about of a trial which will finally settle the controversy. It is possible that the consent of counsel for defendant ro an order for inspection, he not being the attorney of record, was not binding, and that for that reason the order entered after he had ceased to be counsel should have been set aside. The court, however, should have granted the plaintiff’s motion for inspection of the defendant’s books mentioned in and according to the form of the order which was set aside.

The order appealed from should be reversed, with $10 costs and disbursements,, and plaintiff’s motion for inspection granted as indicated. All concur.