Veiller v. Oppenheim , 82 N.Y. Sup. Ct. 21 ( 1894 )

O’BRIEN, J.

Little need be added to the opinion of the learned judge at special term, showing the reasons and necessity for the order appealed from. . The appellant insists that the judge, though he concluded that the plaintiff was not a partner, overlooked the statement in the plaintiff’s affidavit alleging that his action was-brought for an accounting, which he could not maintain, in view of his relation to the defendants as an employe, or at best a co-worker.. It is hardly just, however, to seize upon one expression in an affidavit, particularly where all the facts are presented to the court showing the character in which the plaintiff sues. The agreement with the defendants, which is set forth, shows that he was employed under an arrangement which would give him, in lieu of" salary, a certain percentage of the profits of the business, which, from time to time, was increased. In the leading case of Smith v. Bodine, 74 N. Y. 30, it was held that under such an agreement,, which did not constitute the plaintiff a partner, he could not bring a suit in equity for an accounting, but was left to his action at law. This circumstance, however, instead of being an obstacle, seems to-us an additional reason why the inspection should be allowed. In an action at law it will be necessary for the plaintiff to state the amount which he seeks to recover, and, unless such amount can be-ascertained from an inspection of the books, plaintiff will not be in. a position to know just what sum he is entitled to sue for. In such' an action at law an account between the parties at some stage of the proceeding is practically taken, and this, no doubt, is what was intended to be expressed by the statement in the plaintiff’s affidavit that his action was brought for an accounting and settlement, because we cannot assume that he was to commence .an action in form for an accounting, which, under the case above cited, would not lie. The suggestion that the application is made in bad faith, and is in the nature of a fishing excursion, we think is sufficiently answered by the opinion of the court below. In this connection, and upon the subject of the right to an inspection in general, we are referred to cases wherein it has been held that such motions should be granted with reluctance, and only in cases of necessity, and that it is the practice, except in a clear case, to deny such applications. We have no fault to .find with such decisions, or with the proposition of law thus appealed to; but we have had occasion frequently to say that in all these applications each must stand upon its own footing, and be determined by the merits involved in the particular application. The Code is authority for the. right, in a proper case, to have an inspection, and a moment’s reflection will show that there are cases which may be divided into classes, in one of which such right is more readily granted, and in another more uniformly denied. As an instance of the former may be cited the usual action between partners for an accounting, in. which an inspection is permitted almost as a matter of course. As an instance of the latter class might be cited cases wherein the person suing has no relation to the defendant or his business, and has no right growing out of any relation to an inspection of his books. In such cases, unless it clearly appears, either that the evidence sought is necessary for the purpose of framing a complaint, or is essential to the establishment of the plaintiff’s case upon the trial, and cannot be procured in any other way, such applications will be denied. We think, however, there is a third class, of which the present is a good illustration, in which, while the relation between the parties may be that of employe and employer, or co-workers, in one or more aspects it takes on the character of a copartnership. Here the plaintiff had a direct interest in the profits and losses of the business, his percentage being fixed upon the profits, which he was entitled to receive in lieu of salary. Where such relation is admitted, as in this ease, whether such relation constitutes the plaintiff a partner, or a principal bringing business to the firm, or an employe entitled to a share of the profits, or a co-worker with them in the general business, we think, as argued by the respondent, that “so long as the plaintiff, in one manner or another, under one name or another, was entitled to a portion of the proceeds of the common venture,” a prima facie case is presented, entitling those interested, in that venture to an inspection, where necessary, of the books of account containing 'a record thereof, and to all the information that can be derived from them; and it is only where it is apparent that the application is made in bad faith that such inspection should be denied.

It is insisted, however, that the order, if not refused, should be modified by limiting the number of assistants whom the plaintiff might employ, to the end that it might not result in an abuse of the privilege granted to him by the court, in overrunning the defendants’ office, and interfering with their business. In the order itself the alternative is given of depositing the books in court; but, as the defendants would probably prefer to retain them in their own custody, the court granting the order would at all times see to it that the privilege was not abused, and upon the facts showing any attempt to abuse it, or to make use of it for other than the purpose for which it was granted, namely, to furnish information to the plaintiff, it would be withdrawn. As we should not assume that the plaintiff intends to abuse the privilege, we do not feel warranted in modifying the order, it being within the defendants’ power, if their fears should be realized, to secure relief from the court. We think, therefore, that the order should be affirmed, with $10 costs and disbursements. All concur.