Cohen v. Cohen

267 A.D. 918, 47 N.Y.S.2d 339, 1944 N.Y. App. Div. LEXIS 5510

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1944
• Status: Published

Opinion

Plaintiffs appeal from an order made upon reargument, as resettled, denying in part the" motion by plaintiffs to examine defendant before trial and for a discovery and inspection of his books and records. Order modified on the law and the facts by inserting a provision permitting plaintiffs to examine defendant as to item 6 of the notice of motion, dated January 27, 1943, and directing defendant to produce on such examination, pursuant to sections 296 and 324 of the Civil Practice Act, for the inspection and discovery by plaintiffs, their attorney and accountant, the books and records enumerated in said notice of motion, such discovery and inspection to be had only in connection with item 6. As so modified, the order is affirmed, with ten dollars costs and disbursements to appellants. The action is at law for damages. Plaintiffs are entitled to discovery where the application is made in good faith to enable them to prove net profits which, under their alleged contract of employment, they are entitled to share. (Burns v. Lipson, 204 App. Div. 643; Guiñee V. Murphy, Inc., 223 App. Div. 337.) Examination and discovery to proceed on five days’ notice. Close, P. J., Hagarty, Johnston, Adel and Lewis, JJ., concur.