Brummer v. Cohen

47 A.D. 470, 62 N.Y.S. 241

Opinion

Hirschberg, J.:

By the order appealed' from the defendant was required to submit to an inspection of Ids books for the purpose of enabling the plaintiff to frame his complaint. In the petition on which the order was granted the plaintiff státes that the action is brought, to recover moneys due as commissions upon sales of defendant’s goods, and that the inspection is material, in the words of the petition, “ in order to enable the plaintiff to properly determine the amount due to him from the defendant.” Aside from the question of amount the moving papers show that the plaintiff is in possession of all the facts requisite to the statement of his cause of action. Under the circumstances an order for inspection should not be made before issue joined, merely to enable the plaintiff to insert the ad datnnum, in his complaint. (Tayler v. American Ribbon Co., 38 App. Div. 144.) As the court said in the case cited, “ There is no rule of pleading requiring that to be stated with accuracy. The plaintiff may name an arbitrary amount and recover within it.”

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.