
    Sam F. Yannatone, Jr., Plaintiff, v. John Sullivan et al., Defendants.
    Supreme Court, Special Term, Monroe County,
    April 1, 1946.
    
      William L. Clay for plaintiff.
    
      Rosenberg & Cohen for defendants.
   Cribb, J.

This action is brought by plaintiff to recover moneys alleged to have been paid by plaintiff to defendants in connection with certain wagers made between the parties upon the outcome of a series of horse races. (Penal Law, § 994.) Defendants have interposed a general denial to the complaint, and have submitted no answering affidavits on this motion. The plaintiff seeks an order permitting a discovery and inspection of defendants’ books and records pertaining t.o such wagers in 1943 and the forepart of 1944, as well as pertaining to defendants’ business of receiving bets as alleged in the complaint, and also an order permitting an examination before trial of the defendants.

The complaint alleges that the defendants were engaged in a business of professional gambling, and plaintiff must establish such fact to sustain his action. The greater part of the information sought is within the knowledge of the defendants. The mere fact that plaintiff may have knowledge of some of the information sought does not necessarily preclude him from the right of inspection and examination. (Public National Bank v. National City Bank, 261 N. Y. 316.) In view of the peculiar and secretive nature of the business alleged in the complaint to have been conducted by the defendants, it is obvious that plaintiff could have little knowledge of many facts which he must prove in order to succeed in his action. I feel he is entitled to a discovery and inspection of defendants’ books and records for the year 1943 and forepart of 1944, and also to an examination of the defendants before trial as to their transactions with plaintiff and others during said period as more particularly set forth in plaintiff’s affidavit in support of this motion.

- Let order enter accordingly.  