Abrams v. Statmaster Corp.

18 A.D.2d 1083, 239 N.Y.S.2d 521, 1963 N.Y. App. Div. LEXIS 3980

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1963
• Status: Published

Opinion

In an action commenced by the service of a summons without a complaint, the defendant appeals, as limited -by its brief, from so much of a resettled order of the Supreme Court, Kings County, dated May 2, 1962, as granted the plaintiff’s motion, made pursuant to rule 122 of the Rules of Civil Practice, to examine it and to direct it to produce upon the examination its books and records fo~ the years 1961 and 1962, for the purpose of enabling him to frame his complaint. Resettled order, insofar as appealed from, reversed, with $10 costs and disbursements, and said motion denied. Plaintiff is granted leave to serve a complaint within 30 days after entry of the order hereon. Plaintiff has fairly established that he has a cause of action for commissions earned pursuant to his alleged oral contract, but he has not shown the necessity to examine the defendant for the purpose of framing a complaint (cf. Kenerson v. Davis, 278 App. Div. 482; Matter of Groothaert, 201 App. Div. 510; Newman v. Potter, 201 App. Div. 335; Rector v. Munsell, 11 A D 2d 698; Oboler v. Beakatron Mfg. Corp., 17 A D 2d 639). Insofar as plaintiff asserts he may have a cause of action in equity, he fails to substantiate that, in his contractual relationship with the defendant and in its use of information supplied -by him, his rights were violated. Under such circumstances it was an improvident exercise of discretion to grant the plaintiff’s motion (cf. Stewart v. Socony Vacuum Oil Co., 3 A D 2d 582). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.