The plaintiffs in these two actions were employees of the defendant on a salary and commission basis, and during the year 1918, while the defendant was absent from the city on account of ill health, managed the business in association with defendant’s brother-in-law. At the end of the year 1918 these three took an inventory of the business, and the books were audited by certified public accountants, the amount due the plaintiffs was fixed at $2,350 to Shanfield and $1,175 to Schepps and paid. The amount was accepted and no questions raised as to the correctness of the amount, although plaintiffs remained in the defendant’s employ for more than two years. On April 7, 1921, the two plaintiffs and the brother-in-law incorporated a company and engaged in business in competition with the defendant, and two months thereafter commenced these actions to recover $11,050 for Shanfield and $5,525 for Schepps, on the claim as asserted in the affidavits that defendant collected certain money and put it in his pocket.
The plaintiffs’ counsel is laboring under the delusion that the defendant must prove each item that entered into his books of account, and hence the examination of a long account is involved. On the contrary, the burden is on the plaintiffs to prove that the commission which they accepted was not correct. They will have to establish that more was due them. The proper course would be for the plaintiffs to examine the defendant before trial, requiring him to produce his books, and then in concrete form present the evidence of specific amounts that were omitted from the accounts.
The orders should be reversed, with ten dollars costs and disbursements, and the motions denied, with ten dollars costs.
Clarke, P. J., Dowling, Smith and Merrell, JJ., concur.
In each case: Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.