¶1The complaint alleges two causes of action, the first, to recover the weekly compensation agreed to be paid this plaintiff as a salesman from the date of his employment, June 1, 1918, to the date on which he claims he was wrongfully discharged, June 22, 1918; the second, to recover as damages for the breach of the contract of hiring a sum equal to five per cent of the net profits of the defendant’s business during the agreed period of employment, which it is alleged he was entitled to receive under the contract. The answer is a general denial.
¶2The plaintiff obtained an order for the examination of the defendant before trial. During the examination a stipulation was entered into whereby the defendant agreed to deliver to the plaintiff a verified statement containing schedules of sales, purchases, discounts, expenses, and all other matters essential to the ascertainment of profits of the defendant’s business. The defendant failed to comply with this stipulation, and plaintiff thereupon made a motion for an order for defendant to produce and discover his books. In opposition, it is alleged that the plaintiff is in the employ of a competitor of the defendant. The court granted the order, limiting the inspection of the books to the period from June 1, 1918, to June 22, 1918. This order was erroneous. If the plaintiff was entitled to any inspection of the books, he was entitled to it for the entire period of the contract of employment. His damage will be measured by the profits of the business for the year. It has not, however, been the policy of the courts of this department to grant to discharged *506employees, who are employed by competitors of their former employer, the right to roam at will through the books of the defendant. We have consistently held that the proper remedy under such circumstances was an examination of the defendant before trial and a production of the books by a subpcena duces tecum. (Harbaugh v. Middlesex Securities Co., 110 App. Div. 633; Strauss v. Von Tobel, 131 id. 823; Ortman v. Beiley, 160 id. 258.) If the plaintiff abandoned the examination before trial in reliance upon the defendant’s stipulation to furnish him with a verified statement, he should have applied for a second order for the examination of the defendant, alleging the facts with relation to the former order. This he may still do.
¶3The defendant not having appealed, the order will be affirmed, without costs.
¶4Dowling, Laughlin, Smith and Merrell, JJ., concur.
¶5Order affirmed, without costs.