#### Herbert S. Stone et al., Respondents, *v.*Milberg F. Mansfield, Appellant.

(Supreme Court, Appellate Term,

May, 1899.)

Evidence — If competent, it cannot be excluded because voluminous.

Where a salesman, sued by Ms employers for advances in excess-of Ms ■ earnings, claims as an offest commissions on orders which he has procured for them, it is erroneous for the court, where the orders are in the court room, to refuse' to allow their production .on a notice to the employers requiring the same, merely because the orders are very voluminous and it will take a considerable time for the court and counsel to go through all of them *seriatim.*

Appeal from a judgment in favor of the plaintiffs, rendered in the Municipal Court of the city of Kew York, borough of Manhattan, sixth district.

Sproull, -Harmer & Sproull, for appellant.

Rounds & Dillingham, for respondents.

Leventritt, J.

Under a written agreement between the parties the defendant entered the employment of the’ plaintiffs as a salesman on commission. Certain moneys were -advanced to him from time to'time, and this action was instituted and recovery had for the alleged excess of advances over earnings. The defendant, while admitting the.amount of the payments, disputed the amount of the allowed commissions, claiming that he sent orders to the plaintiffs upon which earned commissions had not been credited and which would substantially reduce, if not extinguish, the alleged balance. Inasmuch as the single question litigated depended on the orders *561which the defendant, pursuant to his employment, transmitted to the plaintiffs, all testimony hearing on the nature and number of those orders was obviously most material.

On the trial the defendant called upon thfe plaintiffs to comply with a notice to produce all written orders forwarded to them by the defendant. It was admitted that the majority of the orders were in -court, hut counsel' refused to produce them because they were '“ very voluminous, in such small lots and at such varying prices that it will take the time of the court and lead to no satisfactory result.” Thereupon this colloquy took place:

By the Court: “ Do I understand that you are going to go through all those *seriatim?"*

By Defendant’s Counsel: “ I certainly am.”

By the Court: “ Then I will sustain the objection.”

The exception of the defendant to this ruling was well taken and cannot be disregarded. The materiality of testimony cannot he measured or tested by the length of time necessary to its introduction. No discretion is vested in the court to reject competent testimony because its reception would involve mnch time and labor. In the case at bar the defendant’s commissions were to be computed on the written orders procured by him and delivered to the plaintiffs, and it was his contention that their production would disclose a larger amount of sales than conceded by the plaintiffs. The latter asserted that many of the orders were based on unauthorized kales and thus sought to account for the defendant’s claim of commissions in excess of what they had allowed him. Manifestly, the orders themselves would have been the highest class of proof to determine both questions. -

The orders being confessedly in the courtroom the justice should have directed their production (Boynton v. Boynton, 16 Abb. Pr. 87; affd., 41 N. Y. 619), received them in evidence' and availed himself of the. assistance they must necessarily have given to a satisfactory determination of the issue. The judgment must be reversed.

Freedman, P. J., and MacLean, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.