O'Neill v. Giallombardo

Order unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: In view of the denials in the amended answer, by which defendant disputes the existence of a partnership between the parties and the assets acquired by the partnership, plaintiff must establish his preliminary right to an accounting and the scope of the accounting before he is entitled to discovery of the fiscal records which in effect relate solely to the items of the account itself. Such fiscal records—as to which discovery now would be premature (Alderman v Eagle, 41 AD2d 641)—include not only bankbooks, bank statements and checks but also ledgers and journals. The protective order should therefore be expanded to include those items within the material not subject to discovery at this time. (Appeal from order of Erie Special Term in action for accounting.) Present—Moule, J. P., Cardamone, Simons and Del Vecchio, JJ.