
    Adolphus Bridgman, Resp't, v. Ruth E. Scott, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 11, 1891.)
    
    ^Discovery—Accounting.
    Plaintiff was employed by defendant under a contract which provided for payment of a stipulated salary and also a percentage of the net profits of the business. Held, that as an action for an accounting under such a contract was not maintainable, a discovery of defendant’s books to enable plaintiff to frame his complaint in such an action should not be ordered.
    Appeal from order directing an inspection and discovery of the defendant’s books so as to enable the plaintiff to frame his complaint.
    
      J. W. Weed, for app’lt; Abram Kling, for resp’t.
   O’Brien, J.

It appears from the petition that the plaintiff was in the employ of the defendant under a contract which provided for the payment of a salary of $3,000, and in addition thereto a further sum equivalent to twenty per cent of the net proceeds of the business for the year 1890 after first deducting therefrom the sum of $5,000. It also appears from the petition that by reason of such contract this action is brought for an accounting.

It being evident that an action upon this contract for an accounting cannot be maintained, the order for the inspection of the books was unauthorized, and should not have been made.

For these reasons the order should be reversed, with ten dollars costs and disbursements, and the motion denied!

Yan Brunt, P. J., and Daniels, J., concur.  