
    Robert L. Dannenberg, Respondent, v. Samuel Heller, Appellant.
    
      Discovery and inspection of an employees looks ly an employee entitled to a percentage on sales.
    
    A person, employed as a salesman under an agreement by which he was to receive as compensation a certain' percentage of the amount of his sales, will not, except in an extraordinary case, he granted an inspection and discovery of his employer’s hooks in order to enable him to frame his complaint in an action against his employer to recover such compensation.
    Appeal by the defendant, Samuel Heller, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1903, granting the plaintiff’s application for an inspection and discovery of the defendant’s books.
    
      Nathaniel Cohen, for the appellant.
    
      Abraham A. Silverberg, for the respondent.
   Per Curiam :

The plaintiff alleges "that he was employed as a salesman to sell the defendant’s wares, and that he was to receive for his services a certain percentage of the amount of the sales. He states that a discovery and inspection of certain of the defendant’s books are necessary in order to enable him to frame his complaint. The plaintiff’s petition, upon which his application was passed, is insufficient in failing to show that he is not possessed of all the facts for which the inspection is sought.

It is seldom, in a case like this, that such an appliction for the purpose of framing a complaint is granted, because, as a rule, it is unnecessary, the plaintiff ordinarily being in a position to frame his complaint, though he may subsequently need the information or the evidence to sustain it upon the trial. Thus in Martin v. New Trinidad Lake Asphalt Co. (87 App. Div. 472) it is said: That the plaintiff may be entitled at the proper time to an inspection and discovery to enable him to obtain evidence necessary to prove the amount he may be entitled to recover upon a trial, may be true, but it is not necessary that he should have such inspection and discovery at this time simply for the purpose of enabling him to state in his complaint what- damages he demands. (Tayler v. American Ribbon Co., 38 App. Div. 144; Brummer v. Cohen, 47 id. 470.)”

Here, however, we need not pass upon the question of whether the plaintiff has presented an exceptional case entitling him at this stage to an examination of the defendant’s books, because it appearing that there is no statement in the petition from which the inference can fairly be drawn that he does not possess the information requested, the application should have been denied.

The order, accordingly, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Hatch, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  