— In an action to recover damages for breach of contract and for an accounting, defendant appeals from an order of the Supreme Court, Nassau County, dated March 26, 1980, which (1) “recalled” a prior order of the same court, dated March 11,1980, (2) granted plaintiff’s motion to direct the issuance of a commission to out-of-State attorneys, inter alia, to discover, inspect and copy documents in the control of a nonparty witness, and (3) denied defendant’s cross motion for a protective order.
Order modified, on the law, by deleting the provision granting plaintiff’s motion and substituting a provision denying the motion. As so modified, order affirmed, with $50 costs and disbursements to defendant.
In the absence of an interlocutory judgment establishing plaintiff’s right to an accounting in the first instance, it was improper for Special Term to direct the issuance of a commission pursuant to CPLR 3108, inter alia, to discover and inspect defendant’s financial records relating to items of the account itself (see Alderman v Eagle, 41 AD2d 641; Corwin v Kaufman, 37 AD2d 838; see, also, O’Neill v Giallombardo, 49 AD2d 1002).
Discovery of defendant’s financial records is apparently not required in plaintiff’s contract action, wherein a fixed amount of $8,000 has been demanded as damages. Gibbons, Gulotta and Cohalan, JJ., concur.
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