#### Emanuel Perls, Respondent, *against*The Metropolitan Life Insurance Company, Appellant.

(Decided June 2d, 1890.)

In an action against an insurance company, on an alleged contract by it to pay plaintiff commissions on premiums on policies of insurance procured by him while formerly an agent of defendant, on application by him for a discovery and inspection of defendant’s books, it appeared that such discovery was sought only to enable him to prove the amount of his damages ; that he had himself kept books of his agency ; and that defendant had offered to give him a statement of the facts desired as to any policy actually procured by him, if he would furnish the name of the insured ; and the good faith of the application was seriously questioned, and was not satisfactorily shown. *Held,*that the application should be denied.

Appeal from an order of this court granting a motion for a discovery and inspection of defendant’s books.

The facts are stated in the opinion.

*Arnoux, Hitch, £ Woodford,*for appellant.

*L. A. Fuller,*for respondent.

Bookstaver, J.

The action in which the order was made is in form an action at law for damages for an alleged breach of contract, but in reality is to recover commissions to which plaintiff claims he is entitled as a former agent of the defendant. The contract alleged in the complaint is denied in the answer, and another contract is set up which it is alleged provided that commissions should only be paid plaintiff so long as he should not work or procure applications for any other life insurance company. The answer then alleges that he had worked for and procured applications for other life insurance companies, naming them, and that in consequence thereof all his rights under the contract were by its *256conditions terminated. It also alleges full payjnent to the plaintiff of commissions and all services up to such termination, and then sets up the statute of limitations.

The trial of the action will necessarily, if plaintiff establishes the contract alleged in the complaint, involve the examination of a long account, and for this reason a reference was ordered several months ago on plaintiff’s motion, but, instead of proceeding with the trial, he has applied to the court for a discovery.

We think the application should have been denied. Before the plaintiff can recover any damages in this action, he must establish a breach of the contract on which he relies, and also that his action was commenced within the time limited by law. The discovery sought is not for the purpose of establishing either of these facts, but only to enable him to prove the amount of his damages, and therefore cannot in strictness be said to relate to “ the merits of the action.”. If the books of the defendant become necessary to prove the amount of damages, he can compel their production by a subpoena *duces tecum.*

Judge Rumsey, in his recent work on Practice (Vol. I. p. 683), says: “ Whenever the object of the discovery can be obtained by the examination of a party or by a subpoena *duces*tecum, the production [of the books] will not be granted; ” and again (at p. 685) : It must be shown “ that the evidence or information cannot be obtained from any other source and that a subpoena *duces tecum*will not answer the purpose; ” citing authorities to sustain the proposition. The decisions of this court on this subject, cited by the respondent, are not in conflict with this proposition. .The case of *The Union Paper Collar Co.*v. *The Metropolitan Collar*Co., (3 Daly 171), was decided by Judge Beady in 1869, and the same judge, delivering the opinion of the Supreme Court in *Harbeson*v. *Van Valkenberg*(5 Hun 454), said: “ it is not a matter of right to inspect books and papers, and the privilege is not given except in extreme cases when the refusal may involve the loss of a claim or defense; in other words, unless it is *257indispensably necessary, and therefore essential to accomplish the administration of justice.”

No such necessity exists in this case. As before stated, the plaintiff’s cause of action rests on his alleged contract and its breach. The contract he claims to have in his possession, and it is not contented that the books will show the breach of it. Indeed, the chief grounds on which plaintiff seeks the discovery, are the time and expense which will be involved in the examination of the books of defendant on the trial, and the supposed difficulty of getting the books by a subpoena *duces tecum.*The latter difficulty is more fancied than real, as the court has ample power to compel their production; and the first should not prevail in this case. For it appears from the papers that the plaintiff kept books of his agency while he was defendant’s agent, and the latter, before the order in question was made, offered to give the former a full statement of the facts desired by him with respect to every policy which was procured by him as agent under the contract in suit, the name of the insured in which he would furnish to the defendant, provided that upon investigation it should be found that he did procure suehpolicy. This, we think, under the circumstances of this case, all that the plaintiff could in fairness and justice require.

The good faith of the application is also seriously questioned by the defendant, and it is charged that the discovery is sought for ulterior purposes. These charges are not satisfactorily met by the plaintiff, although he had an opportunity to do so, and under the circumstances we think "the boobs should only be examined under the supervision of the referee.

The order should therefore be reversed, with costs.

Labbemobe, Ch. J., concurred.

Order reversed, with costs.