Opinion
December 29, 1948.
Present — Taylor, P.J., McCurn, Love, Vaughan and Kimball, JJ.
Order modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Memorandum: The examination before trial of the defendant should be confined to matters material and necessary to establish plaintiff's right to an accounting, but not the account itself. The following words should be stricken from item "1" contained in the order appealed from: "the purchase price, the terms of payment and other items of the contract of purchase." The following words should be stricken from item "4" contained in the order appealed from: "the suppliers and the names and addresses of the customers of the businesses conducted at said stores while defendant was the sole owner and operator thereof." The following words should be stricken from item "8" contained in the order appealed from: "the suppliers and the names and addresses of customers of the businesses conducted by Melzer Bros. Inc." The defendant likewise should not be compelled to produce his records and books of account upon an examination at this stage of the litigation. There is no basis in this record for ordering the production of the books and records of Melzer Bros., Inc. The final ordering paragraph directing the production of the books, records, etc., should be stricken from the order. The order as so modified should be affirmed. All concur. (The order grants plaintiff's motion for an examination of defendant Isadore Melzer before trial.)