Zakarias v. Radio Patents Corp.

In an action commenced by the service of a summons without a complaint, defendants Radio Patents Corporation (in dissolution) and Radio Patents Corporation, appeal from so much of an order of the Supreme Court, Dutchess County, dated November 22, 1963, as granted plaintiff’s motion to examine them before trial for the 796 purpose of enabling him to frame his complaint and which directed them to produce their books and records upon such examination. Order insofar as appealed from, reversed, with $10 costs and disbursements, and plaintiff’s motion for the pretrial examination of said defendants denied. In our opinion, the facts disclosed in plaintiff’s affidavit indicate that he has sufficient information to enable him to draw a complaint without the examination which he seeks (New Rochelle Precision Grinding Corp. v. Marino, 9 A D 2d 685, and cases cited). An examination will be denied where its object is to enable plaintiff to state the amount of damages, since damages can be estimated (Newman v. Potter, 201 App. Div. 335, 337; Kenerson v. Davis, 278 App. Div. 482). Moreover, plaintiff sets forth facts showing that this is a suit for an accounting. An examination to frame a complaint is not permissible in an action for an accounting (Pierce v. McLaughlin Real Estate Co., 121 App. Div. 501; Teall v. Roeser, 206 App. Div. 371). We are also of the opinion that the provisions of section 3101 et seq. of the Civil Practice Law and Rules have not changed the established rules. While the right to pretrial disclosure has been liberalized, “ there is a fair boundary to this process which ought to be respected when the purpose of the examination is to frame a pleading against the party to be examined” (Stewart v. Socony Vacuum Oil Co., 3 A D 2d 582, 583). Although the Stewart ease was decided before the enactment of the Civil Practice Law and Rules, the above-stated rule is equally applicable now. Beldock, P. J., Ughetta, Kleinfeld, Christ and Rabin, JJ., concur.