(78 Hun, 363.)

#### WARD v. NEW YORK LIFE INS. CO.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Discovery—Examination to Enable Plaintiff to Frame Complaint.

Where an examination of defendant’s hooks, to enable plaintiff to frame his complaint, would be a great hardship on defendant if it should be finally determined that plaintiff had no right, it will not be granted until plaintiff establishes his right to a recovery.

Appeal from special term, New York county.

Action by Charles M. Ward against the New York Life Insurance Company. From an order denying a motion for the inspection and discovery of the books of the defendant before service of the complaint, plaintiff appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and RANKER, JJ.

J. M. Mitchell, for appellant.

W. B. Hornblower, for respondent.

VAN BRUNT, P. J.

It will not be necessary, in the disposition of this appeal, for this court to pass upon the question as to the rights of the parties, arising out of the discharge of the plaintiff from the employment of the defendant, because a discussion of such rights might lead to conclusions as to the views of this court *187upon the merits of this action, which might he modified, had it the facts before it, as they may be established upon the trial. It is evident that there is no absolute right upon the part of this plaintiff to have an inspection of the books of the defendant in order that he may frame a complaint with more particularity than he would be able to do without such an inspection; and where it is apparent that such an inspection would be a great hardship, if it should be finally determined that the plaintiff has no right of recovery, an order of that description should not be granted, unless the same is absolutely necessary to the framing of the plaintiff’s complaint. In the case at bar, the first issue which is presented is as to the right of this plaintiff to any relief whatever; and, until that is determined, it would seem that this extreme right of inspection of an adversary’s books should not be granted. The plaintiff in this action may allege his rights in such a form that, upon establishing his right to a recovery, he would be entitled to an accounting; or he may assert his rights by such a complaint, as that the court would have no power, as matter of right, to compel an accounting by an interlocutory judgment. It seems to us, however, that absolute justice will be done between the parties if we place them in such a position that, if the plaintiff establishes his right of recovery, an opportunity to get the evidence which he now seeks will be given him. We think, therefore, if the defendant stipulates that ■ it will consent that the issues which are raised by the plaintiff’s complaint and its answer may be referred, in case the plaintiff so desires, that the order appealed from should be affirmed, because, upon a trial in such a forum, the question of the plaintiff’s right to recover can be first determined; and, if it is held that he has such right, facilities for proving the amount of his claim by the defendant’s books will be within his reach. We adopt this method of disposing of the appeal the more readily because it is apparent that it will be impossible to try the issues involved before a jury if the plaintiff succeeds in maintaining his right to a recovery. Upon the defendant giving the stipulation in question, the order appealed from should be affirmed, with $10 costs and disbursements. All concur.