Hayes v. American Bridge Co.

The greater part of the evidence sought to be elicited by defendant’s examination will become material only if and when it has been adjudged that defendant should account. All that it is material to show before that time is that some profits have been realized, but it would be contrary to the rule uniformly applied in such cases to permit in advance of an interlocutory judgment an examination as to the amount of such profits. As to the so-called guaranty agreement we are unable at present to see that it merits the importance which plaintiff attributes to it. Whether any sum which may have been paid under such a guaranty is to be considered as profits under plaintiff’s agreement is a question of law to be determined before defendant is called upon to show how much was so paid. The order appealed from will be modified so as to limit the examination under it to the bare question whether any profits were realized from the contracts described in the complaint, and as so modified affirmed, with ten dollars costs and disbursements to appellant. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order modified as directed in opinion and as modified affirmed, with ten dollars costs and disbursements to appellant. Order to be settled on notice.