
    Dalzell v. Fahys Watch Case Company.
    
    (New York Superior Court—General Term,
    October, 1893.)
    In an action to recover damages for failure to pay to plaintiff certain profits on a manufactured article, the right and extent of the recovery claimed depended upon certain written agreements. Defendant, under its construction of the writings, offered to furnish a bill of particulars, but declined to allow an examination of its books. On appeal from an order denying plaintiff’s motion for discovery and inspection of defendant’s books, held, that whether the action be denominated one in equity for an accounting, or at common law for the breach, the damages recoverable are substantially the same, and the taking and stating of an account necessary to reach a proper result. In either event plaintiff may enforce the production of defendant’s books by subpoena duces tecum in ample time for all his purposes, and when that can be relied on with safety there is no necessity for an inspection or discovery upon a motion like the present.
    Appeal from order denying plaintiffs motion for discovery and inspection of defendant’s books.
    
      Wilber & Oldham, for plaintiff (appellant).
    
      Wetmore & Jenner, for defendant (respondent).
    
      
       Received too late for insertion in proper place.— [Reporter.
    
   McAdam, J.

The action is to recover $45,000 for failure to pay over to the plaintiff one-half of the net profits said to have been realized by the defendant from the manufacture and.sale of “ crowns,” which is that part of. the exterior'of the watch case which is corrugated and turned in stem-winding watches. The right and extent of. the recovery claimed depend upon certain written agreements. Whether the action, be denominated one . in equity for an accounting, or at common law for the breach, the damages,recoverable are. substantially the same, and the taking and stating of an account necessary to reach a proper result. The defendant, under its construction .of-the writings, is bound to pay only for the crowns manufactured and sold by it to the trade, separated from watches of its own manufacture, while under the construction contended for by the plaintiff, the defendant is hable as well for crowns manufactured by it and placed on all watches manufactured and sold by it — that the separation has nothing to do with the question of liability. The defendant is willing to furnish an account of the crown heads sold as such, and not affixed to watches manufactured by it, but declines to allow an inspection of its books showing the sales of watches manufactured by it, which were sold at different prices without reference to the agreement under which the plaintiff claims, and the entries in respect to which contain no allusion to crown heads and no information whatever concerning them. If the action be regarded as one in equity the judgment will prescribe the nature and extent of the liability incurred and the account to be furnished, and if it be regarded as one at law the referee, after construing the writings, will in like manner determine the extent of the inquiry. In either event, the plaintiff may enforce the production of the defendant’s books by subpoena duces tecum in ample time for all his purposes, and when that can be relied on with safety there is no necessity for an inspection or discovery upon motion like the present. Commercial Bank v. Dunham, 13 How. Pr. 541; Holtz v. Schmidt, 36 N. Y. Super. Ct. 575. Inspection or discovery is not matter of right, but a privilege granted'in extreme cases, where the refusal may defeat justice or seriously imperil the establishment of a claim or defense. Harbison v. Von Volkenburgh, 5 Hun, 454. The application was one addressed to the discretion of the court ( Van Zandt v. Cobb, 12 How. Pr. 544; White v. Munroe, 33 Barb. 650; Hart v. R. R. Co., 52 N. Y. St. Repr. 834; Ashley v. Whitney, 54 N. Y. Super. Ct. 540), and it appearing to have been properly exercised, the order appealed from must be affirmed, with costs.'

Gildersleeve, J., concurs.

Order affirmed, with costs.  