Vieller v. Oppenheim. While there is, no doubt, a tendency to abandon the strict technical rule of merger in England and in some of the States, and while it appears to have been actually abandoned in Massachusetts Commonwealth v. Walther (109 Mass. 309), Mr. Wharton, in the ninth edition of his well-known work on American Criminal Law, cites the Walther case and the Elkin case as recognizing its existence in New York (§ 1344). And the same learned commentator, in his earlier treatise on Precedents of Indictments, referring to conspiracy to commit felonies, and citing the case of the People v. Mather, says, "Care must be taken in preparing an indictment for this branch of conspiracy to charge the offense as merely an unconsummated attempt. If, however, in an overt act, or in the body of the court, the commission of the actual offence be charged, the conspiracy merges in the felony, and the indictment is incapable of supporting a conviction" (Precedents of Indictments, etc., 3d Ed., § 607). Whatever may be the ultimate decision upon this question when directly presented to the tribunal of last resort, it seems to me clearly the duty of a trial court to accept and apply the doctrine of the merger of a conspiracy in an executed felony as sanctioned in the opinion delivered in the cases cited in the Court of Errors, in the old Supreme Court and in the Court of Appeals. The people have the right of appeal from an order sustaining a demurrer to an indictment, and it is far better that this question should be passed upon by the General Term and Court of Appeals beforehand than after a long trial, the labor of which would be wholly wasted if the judicial opinions to which I have referred are correct expositions of existing law. The demurrers to the indictment are sustained. Vieller v. Oppenheim. VIELLER v. OPPENHEIM. N. Y. Supreme Court, General Term, First Department; January, 1894. 1. Discovery and Inspection.] The fact that the plaintiff, in an action to recover commissions or a percentage, is not entitled to an accounting from the defendant, is not a sufficient reason why he should not have a discovery and inspection of the defendant's accounts. 2. The same.] The fact that the plaintiff has had, from time to time, opportunity to examine the books, is not alone sufficient ground for refusing an application for discovery and inspection in which he may have the aid of an expert. 3. The same.] Discovery and inspection of accounts may be granted not only in an action between partners for an accounting, but also where the relation between the parties has been that of employee and employer or of co-workers, as where plaintiff had been employed for a share of profits in lieu of salary. 4. The same.] A plaintiff who in whatever manner or under whatever name is entitled to a portion of the proceeds of a common venture, is prima facie entitled to an inspection when necessary of the books containing the records thereof, unless it appears that the application is in bad faith.* Phillip B. Vieller sued Edward L. Oppenheim and others; the nature of the action as stated in his affidavit to obtain discovery and inspection of accounts, was to recover a percentage of gross profits of the defendant's business to which he claimed to be entitled under a contract between them which required the plaintiff to give his undivided attention to the defendant's business and particularly to procuring new customers, he to receive fifteen per cent. of the net profits of the defendant's general business, to be calculated by deducting, from gross profits, the expenses, interest on cash capital, and on value of the seats in exchanges, and moneys due on bad and *See note at the end of this case. Vieller v. Oppenheim. doubtful accounts (the percentage, however, to be paid on bad or doubtful accounts ultimately collected), and he not only to have an interest in the profits but also to be responsible for firm losses on speculative business equal to fifteen per cent., but to have no voice in the management of the business, and not to be a partner nor have a right to sign the firm name. A first motion for discovery and inspection was denied. on the ground that although a general and sweeping order was asked for, it did not appear exactly what relief plaintiff sought or why the inspection was necessary to enable him to prepare his complaint, and that it did not appear whether he intended to frame his action to open settled accounts which had been set up in the opposing affidavits, or simply to sue for an accounting. On a second motion he alleged that it was his purpose to set aside an agreement which defendants relied on as a liquidation and to open the accounts if the same should be deemed to be settled and to effect a proper accounting and settlement. The court at Special Term granted the motion, the following opinion being rendered: BARRETT, J.-The plaintiff was not a partner in the defendants' firm, but he was not an ordinary employee. He was an important co-worker with the defendants, and his interest had a direct relation to the profits of the firm. This interest was increased by the profits and decreased by the losses. As to the speculative account, it was expressly provided that he should have a specific interest in the profits, and be responsible for a specific percentage of losses. It is apparent, therefore, that he is entitled to an inspection of the firm books, provided he has made out a prima facie case for the re-opening of the accounts or statements furnished to him from time to time. Such a prima facie case is, I think, clearly set forth in Vieller v. Oppenheim. the rebutting affidavit used upon the previous motion, and made (with other papers) the direct basis of the present motion. Several grave inaccuracies-to use the mildest expression--are pointed out, and, while the defendants seek to explain the plaintiff's charges in some particulars, their explanations are not entirely satisfactory. They are certainly not conclusive against the application. One charge in particular is not met at all. I refer to the item of interest. By the agreement, the plaintiff's percentage of profits was to be ascertained by deducting from the gross profits interest on cash capital at the rate of five per cent., together with interest at the same rate upon the sum of $30,000, representing the approximate value of the defendants' seats in various exchanges. It appears that after the new firm was formed on May 1, 1891, the defendants privately arranged to credit themselves with six per cent. upon this $30,000. They also arranged to withdraw their capital, as firm capital, and to credit such capital to their individual accounts as in form a loan to the firm, at six per cent. These interest charges were credited monthly, thus practically effecting compound interest. The defendants make no satisfactory explanation of this wrongful breach of their contract. Indeed, they seem to have concealed their acts in this respect from the plaintiff, and when he accidentally discovered what they had done, and taxed them with it, they vouchsafed no explanation, but simply intimated that it was no affair of his how they arranged their business interests as between themselves. Indeed, this is the posi tion which they deliberately assume upon the present application, for Mr. Edward L. Oppenheim declares in his affidavit that, "The plaintiff has no concern whatever in the interest or the capital account to which in his affidavit he refers." This position is quite untenable. It is true that the plaintiff has no concern with the private arrangements of the defendants, but he has every concern with their bring Vieller v. Oppenheim. ing their private arrangements into the accounts between him and them, and thus unjustly reducing his interest. I do not desire to comment harshly upon these acts, but I must say that, unless they were inadvertent, it is hard to see how they could have been in intention fair. Certainly, settlements based upon their concealment could not be permitted to stand. It is sufficient, however, for the purpose of this application, that the acts charged-those just pointed out and others specified in the papers--justify the inspection (in part) which the plaintiff seeks. And it is no answer to such an application, founded upon such facts, to say that the plaintiff has had from time to time an opportunity to examine the books. He is not an accountant, and he is not to be deprived of an expert examination merely because he has at times looked into the books. The inspection is to enable him accurately to frame his complaint. He might, possibly, without an inspection, frame some sort of a complaint, but not such a complaint as the courts approve of. A complaint founded upon such an examination as he has already made, or might have made, would be a very general and imperfect statement of his case—a statement which might well be attacked as indefinite and uncertain. He is not precluded from an inspection merely because in general terms he might aver certain broad facts justifying a prayer for an accounting. He has a right, and it is indeed his duty, to set forth the specific wrongs of which he complains, and to fortify his prayer by distinct allegations as to each matter which may be the subject of adjudication. The examination should, however, be limited to the period commencing May 1, 1891. That was the date of the formation of the new firm, and the plaintiff, at or about that time, gave the old firm a general release except as to certain specific matters referred to in the dissolution agreement. No case is presented justly questioning this |