
    Lincoln Sivins, Plaintiff, v. Hyman Mooney et al., Defendants.
    (City Court of New York, Special Term,
    April, 1907.)
    Discovery: Inspection of books, etc.— Eight to remedy — Necessity of discovery; Procedure—Answer to application — Laches.
    In an action by a salesman to recover for his alleged wrongful discharge, where his compensation under the contract of employment was based on sales made by him personally and there is no allegation that he sold any goods or that he has 'not been paid for all services rendered, an inspection of defendants’ books showing their sales is unnecessary and will not be required.
    Where a party applies for the inspection of his adversary’s books after the cause has been set down for trial on the short cause calendar, has been on the day calendar a number of times and for the last four days called, marked ready and passed, the application should be denied for laches.
    Motion for a discovery and inspection of the hooks of defendants.
    Bogart & Bogart, for plaintiff.
    Abraham Oberstein, for defendants.
   Wadhams, J.

Motion is made for a discovery and inspection of the books of defendants to enable plaintiff to prepare for trial, pursuant to section 803 of the Code of Civil Procedure and Rules 14 and 15 of the General Rules of Practice. The moving papers must show the necessity of such an examination. Bloom v. Patten, 58 N. Y. Super. Ct. 225. In this case the complaint alleges: The defendants employed the plaintiff in their business, commencing on the 21st day of September, 1906, for one year, on a commission basis of seven per cent, for all sales made by the plaintiff for the defendants,” and continues-that on or about the twentieth of October - defendants, without cause, discharged plaintiff. There is no allegation that plaintiff sold any goods for defendants for which he was entitled to commission, neither does it allege that he has not been paid for. any services rendered. This is not a. case where plaintiff alleges that he was entitled to commissions upon all sales of a certain variety of goods or in a certain territory, but his remuneration is alleged to be based upon sales made by him personally. There being no allegation that plaintiff ever made any sales for the defendants, the books of the defendants showing their sales are immaterial. Moreover, the plaintiff is guilty of laches. The cause was set down for trial on the calendar for short causes on December 1, 1906, and has since been on the day calendar a number of times during January, February and March, and for the last four days has been on the day calendar and marked ready and passed. In Moran v. Vreeland, 29 App. Div. 243, the Appellate Division of this Department, per curiam said: “ A party who desires the inspection of an instrument for the purpose of preparing for trial, cannot ordinarily wait until after the cause has been set down for trial and has actually appeared Upon the day calendar before making his application. If he does his application should be denied upon the ground of his own laches.” There is nothing in the moving papers to explain or excuse the plaintiff’s delay in making this application until the cause is upon the day calendar ready for trial.

Motion denied, with ten dollars costs. ..  