Hoisting Machinery Co. v. Scofield Engineering Co.

Clarke, J.:

This is an action for the dissolution of a joint enterprise and for an accounting. The answer denies the terms of the agreement as alleged by the plaintiff and sets up a different agreement and asks for the dismissal of the complaint except in so far as it asks for an accounting. We are of the opinion that a proper case is shown for the issuance of a commission to take depositions of the proposed witnesses upon oral interrogatories, but that such testimony should be limited to the facts necessary to establish the nature, extent and terms of the joint enterprise or undertaking and the right to an accounting; in other words, the right to an interlocutory judgment for an accounting. When the nature and extent of the accounting is established by the interlocutory judgment it will be proper to apply for another commission to take testimony upon such accounting if it shall appear to be necessary at that time. It is obviously improper to compel an accounting before it shall have been determined that one is necessary and the terms thereof fixed. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements to the appellants, and the motion granted to the extent indicated, with ten dollars costs. Ingraham, P. J., Scott, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to extent indicated in opinion, with ten dollars costs. Order to be settled on notice.