
    Jesse L. Boskowitz, as Administrator, etc., of Ignatz Boskowitz, Deceased, Respondent, v. Albert Ulmann, Appellant, Impleaded with Joseph H. Sulzbacher (Surviving Partner of the Firm of J. H. Sulzbacher & Company), Defendant.
    (No. 1.)
    First Department,
    November 15, 1907.
    See head note in Boskowitz v. Sulzbacher, No. 1 (ante, p. 878).
    Appeal by the defendant, Albert Ulmann, from an order of the Supreme Court, made at the Bew York Special Term and entered in the office of the clerk of the county of Bew York on the 8th day of August, 1907, denying the said defendant’s motion to vacate an order for his examination before trial to enable the plaintiff to frame his complaint.
    
      Theodore Baumeister [S. Lachman with him on the brief], for the appellant.
    Harold Nathan [John R. Dos Passos with him on the brief], for the respondent.
   Per Curiam:

The appellant was in the employ of the firm of J. H. Sulzbacher & Co. as manager of their main office. This action is brought by the administrator of the deceased partner against Ulmann and the surviving partner to compel the former to account for alleged fraudulent acts and for secret profits alleged to have been made as such .manager and not accounted for to the firm. The action was commenced at the same time plaintiff commenced his action against Anton W. Sulzbacher and Joseph IT. Sulzbacher. The papers upon which the order for examination of Ulmann was granted show that plaintiff believes that he has a good cause of action against Ulmann for an accounting for his acts as such manager, but otherwise the-affidavits are substantially the same as those upon which the order for the examination of Anton W. Sulzbacher in the action by this plaintiff against him and Joseph H. Sulzbacher was made, which was involved in the appeal argued and decided herewith (121 App. Div. 878). The observations made in the opinion on that appeal with respect to the insufficiency of the affidavits apply with equal force here, and upon the authority of that opinion the order should - be reversed, with -ten dollars costs and disbursements, and motion to vacate the order for the examination should be granted, with ten dollars costs.

■' Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Houghton, JJ.

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