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App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

York on the 25th day of November, 1898, directing the defendant to deposit its sales and cash books and all other books of account showing the sales made by the said defendant from March 19, 1898, to November 7, 1898, with the clerk of the county of New York for a period of six days, to enable the plaintiff to examine and take copies of the entries contained in said books.

Herman Herst, Jr., for the appellant.

Frederick Wiener, for the respondent.

PATTERSON, J.:

By the order appealed from herein, the defendant was required to deposit in the office of the county clerk of New York its sales and cash books and all other books of account showing sales made by it during a certain period of time, and the direction was made that such books so remain on deposit for six days, to enable the plaintiff, "with his attorney or any other necessary assistants," to examine and take copies of the entries of such sales in said books. This order was granted upon a motion made for a discovery, to enable the plaintiff to prepare his complaint. The affidavits presented by the plaintiff on that motion showed that his action is for a breach of a contract for the payment of commissions upon sales of merchandise made by the defendant.

The plaintiff shows beyond doubt that he already has all the information necessary to make the allegations in a complaint proper to such an action. He has stated his cause of action as completely in his affidavits as it can be stated. The only possible pretext upon which further information could be required is that the plaintiff may state the amount of damages he claims. This order, so sweeping in its character, has been made only to enable the plaintiff to insert the ad damnum in his complaint. There is no rule of pleading requiring that to be stated with accuracy. The plaintiff may name an arbitrary amount and recover within it.

It is improper, to say the least, to allow a roving examination through the defendant's books; to deprive it of the possession of those books; to compel it to deposit them, and to subject it to the inconvenience of such an order, when there is no real need for such APP. DIV.-VOL. XXXVIII. 19

146

38
37 Mis 171

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. a course. The contents of the petition and affidavit of the moving party do not show, within rule 14 of the Supreme Court, the necessity for all these books to be taken from the possession of the defendant, nor are the technical requirements of that rule complied with.

It has been held, in applications of this character and on a motion for a discovery to enable a party to frame a complaint, that there is no absolute right on the part of a plaintiff to have an examination of a defendant's books, and that where it is apparent that such an inspection would be a great hardship, an order of that description will not be granted unless it is absolutely necessary. (Ward v. N. Y. Life Ins. Co., 78 Hun, 363.)

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for a discovery denied, with ten dollars costs.

O'BRIEN, INGRAHAM and MCLAUGHLIN, JJ., concurred; VAN BRUNT, P. J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

JOSEPH B. FRIEDLANDER, Appellant, v. THE NEW YORK PLATE
GLASS INSURANCE COMPANY, Respondent.

Guaranty of an indebtedness for goods to be sold — when given to a firm it does not survive its dissolution officers of the corporation which gave the guaranty cannot extend it by parol — estoppel.

The life of a writing, by which a corporation agrees to guarantee bills for merchandise which may be sold by a firm to a third person, ends with the dissolution of the firm, and does not extend to goods thereafter sold by one of the partners to such third person.

Such liability cannot be extended, nor can an estoppel be created in favor of such partner, by parol, by the statements of an officer of the corporation. Beakes v. Da Cunha (126 N. Y. 296), distinguished.

APPEAL by the plaintiff, Joseph Friedlander, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of June,

FIRST DEPARTMENT, MARCH TERM, 1899.

App. Div.]

1898, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk's office on the 21st day of June, 1898, denying the defendant's motion to vacate and set aside said judgment

George H. Epstein, for the appellant.

Harold Nathan, for the respondent. PATTERSON, J.:

From a judgment entered upon a dismissal of the complaint in an action brought upon a written guaranty this appeal is taken. On the 25th of February, 1896, the defendant, a corporation, delivered to the firm of Friedlander & Greene, of which the plaintiff was a member, a letter signed by the secretary of the defendant, in which it was stated that the defendant would guarantee, to the extent of $1,500, the payment of bills for glass that should be bought by one Edelman from the firm mentioned. It was shown upon the trial that the letter of guaranty was lost, and its contents were proven orally. It appeared in evidence that the firm of Friedlander & Greene was dissolved on the 18th day of March, 1896. Friedlander sues in his individual right, and in the complaint it is alleged that between the 25th of February and the 27th of July, 1896, in reliance upon the defendant's guaranty, the plaintiff sold and delivered to Edelman plate and other glass to a large amount, and that on the day last named there was a balance remaining due of $1,922.77, which Edelman had neglected to pay after demand, and that, therefore, the defendant was liable upon its guaranty to the full amount thereof. On the trial the court allowed the plaintiff to amend his complaint by inserting an allegation that upon the dissolution of the firm of Friedlander & Greene the guaranty was assigned to the plaintiff. It is not seriously insisted on this appeal that any right was acquired by Friedlander under the assignment of this guaranty. Obviously it was not assignable. From its terms, as disclosed in the evidence, it was a direct guaranty of the defendant corporation to the firm of Friedlander & Greene. There was nothing which made it either assignable, or negotiable or transferable. The liability of a guarantor is strictissimi juris, which means that it shall not extend beyond the precise stipulations of the guaranty. (Smith v. Molle

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. son, 148 N. Y. 241.) The trial judge dismissed the complaint, evidently, on the ground that inasmuch as the contract was made with Friedlander & Greene it did not extend to the merchandise sold by Friedlander to Edelman after the dissolution of the firm of Friedlander & Greene on the 18th of March, 1896, and, therefore, could not be made to cover the balance which was due on Edelman's account with that firm in July, 1896. The ruling of the court in this regard was right. The dissolution of the firm discharged the defendant's further liability on the guaranty. (Penoyer v. Watson, 16 Johns. 100.) The case cited was decided on what was held in Meyers v. Edge (7 Term Rep. 250), and SPENCER, J., says, referring to that case, "There, a letter of credit was directed to the house of A. B. & Co., promising to pay for goods to be furnished to D. The goods were furnished after A., one of the partners, had withdrawn from the partnership and the guarantor was held not to be liable. This court has recognized the law of that case in Walsh & Beekman v. Bailie (10 Johns. Rep. 180), and in Robbins v. Bingham (4 Johns. Rep. 476) we held that the surety could not be bound beyond the scope of his engagement."

The case of Penoyer v. Watson (supra) is frequently referred to as authority, but it is claimed that the proof in the record before us shows peculiar circumstances which render the rule announced in that case inapplicable here. For instance, it is said that after the dissolution of the firm, and while Edelman was purchasing goods of Friedlander, there was a correspondence between the latter and the defendant concerning the extent and obligation of this guaranty, but it will be observed that all that correspondence emanating from the plaintiff is signed "Friedlander & Greene," and the defendant's answers are directed to "Friedlander & Greene," down to as late a date as July 30, 1896. There is nothing in that correspondence making the guaranty individual as to Friedlander. It is also claimed by the plaintiff that in certain conversations with one Danziger, the president, and White, the secretary, those persons in some way recognized or admitted the guaranty as one running in favor of Friedlander individually. But the liability sought to be enforced here is a corporate liability. Neither of these persons had a right to extend by parol that guaranty beyond its terms so as to vary an obligation binding upon the defendant. They could not make a

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

new guaranty by parol, for that would have been contrary to the statute; they could not extend the terms of the original guaranty by parol, nor could their declarations raise an estoppel against the corporation by reason of the nature of the contract.

This is not to be confounded with that class of cases in which it has been held that when, at the time of the execution of a written guaranty, it is within the intention of the parties that it shall be in favor of some one not specifically named or mis-described in the writing, it may be enforced by such unnamed person. That was the case in Beakes v. Da Cunha (126 N. Y. 296) which distinguished Barns v. Barrow (61 id. 39). In the case before us, the defendant's obligation was expressly to the copartnership; that copartnership was dissolved and with that dissolution the operation of the guaranty ended. It was not assignable nor transferable, and no new right based upon it in favor of the plaintiff as against the defendant was created.

The judgment appealed from must be affirmed, with costs.

RUMSEY, O'BRIEN and INGRAHAM, JJ., concurred; VAN BRUNT, P. J., concurred in result.

Judgment affirmed, with costs.

CHARLES H. WHITE and MARGARET D. JACKSON, as Administrators, etc., of David G. ROBERTSON, Deceased, Appellants, v. OTTO M. EIDLITZ and ROBERT J. EIDLITZ, Respondents.

Use of a freight elevator by an employee.

In an action brought to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendants, it appeared that the elevator of the defendants in which the intestate, an employee of the defendants, was riding with other workmen at the time of the accident, although intended for material, was not, if properly used, dangerous for persons to ride in; that the cause of the accident was the placing of planks across the elevator shaft on the fourth floor, which planks were carried upwards with the ascent of the elevator to the top of that story, thus impeding its progress and producing a strain which caused the elevator to descend, and that it was the jar and noise produced by the striking of the elevator against the planks which gave the occupants just cause of alarm and induced them to jump, with the result that the plaintiff's intestate in so doing was killed.

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