November 15, 1918.
Charles A. Houston, for the appellant.
Henry E. Heistad, for the respondent.
Plaintiff, a former salesman of defendant's firm, whose compensation was measured by his individual efforts, after complaint that a sum specified down to the cents is due to him, has obtained a broad and drastic order for inspection of the books and all other papers of his former employer from 1903 to 1917, "concerning, regarding and referring to and connected with the employment of plaintiff by the defendant's firm, the sale and delivery" by him as made and concluded with the firm's customers, showing profits, losses, etc.
We think that the order was not necessary. In effect it clothes the former employee with a roving commission to look into the business of the firm that is not justified by the issues tendered, and not warranted at least at this stage of the litigation.
We fail to perceive why the plaintiff should not be content with an examination before trial upon which the books and papers may be produced by a subpœna duces tecum as required. ( Cohen v. Rothschild, 162 App. Div. 611; Harbaugh v. Middlesex Securities Co., 110 id. 633.)
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
JENKS, P.J., THOMAS, RICH, BLACKMAR and JAYCOX, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.