
    Benjamin F. Webb, Appellant, v. The Homer W. Hedge Company, Respondent.
    Second Department,
    June 18, 1909.
    Discovery—inspection of books — master and servant—percentage of profits.
    Where one who is employed under a contract whereby he is to receive a fixed salary, a percentage of the profits and one-third of the business he brings in, is, discharged without previous notice and without an .opportunity to secure information from his employer’s books as to the amount due him tinder the contract, an order allowing him to inspect such books for the purpose of enabling him to prepare for trial should be granted. '
    • Appeal by the plaintiff, Benjamin F. Webb, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of February, 1909.
    
      E. W. McMahon [Curtis Calvin Cooper and Charles Thaddeus Terry with him on the brief], for the appellant.
    
      Charles Haldane (Eugene P. Weed with him on the brief], for the respondent.
   Rich, J.:

This appeal is from an order denying plaintiff’s motion for a discovery and inspection of the books and papers of the defendant under the provisions of section 803 of the Code of Civil Procedure, for the purpose of enabling the plaintiff to prepare for trial.

The complaint alleges the breach of a contract by the defendant, which provided, among other things, that one Etheridge, the plaintiff’s assignor, was to loan to defendant $5,000 for five years and that defendant was to employ Etheridge as its manager and treasurer for.a period of five years at a fixed salary, and a fifteen-seventy-tliirds share of the net profits of defendant’s business each year, and a one-third share of the profits of all business secured by the. said Etheridge for the defendant; that the contract was performed on the part of Etheridge for about three years, when he was wrongfully dismissed. It was shown by the moving papers that the dismissal was without previous notice and without an opportunity to secure information from defendant’s books as to the amount of compensation due him under the contract; that the books are now in the possession of the defendant, and that an inspection can be had without serious inconvenience.

The defendant did a large business during the. time of Etheridge’s employment, and there is no way of showing the amount he was entitled to receive except by recourse to the books. Many of the matters now in dispute will undoubtedly he eliminated by an inspection, and we are of the. opinion that the order should have been granted. We think, however, that there is no occasion to take the time plaintiff asks for the examination.

The order .must be reversed, with ten dollars costs and disbursements, and the proceeding remitted to 'the Special Term, with instructions to make a proper order for the inspection of defendant’s books.

Hibschberg, P. J., «Tenes, Gaynor and Miller, JJ., concurred.

Order reversed, ■ with ten dollars costs ánd disbursements, and motion granted, with costs. Proceedings remitted to the Special Term for the imposition of such restrictions on the examination as may be proper.  