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defendants made an offer of judgment for $49 50, which the plaintiff accepted; held, the defendant was entitled to recover his costs of the defence (Johnson v. Sagar, 10 How. 552).
a. Where, in an action to recover land, the defendant served with his answer, which was a general denial, an offer under section 385 allowing the plaintiff to take judgment for a part of the premises claimed. The offer was not accepted. The plaintiff did not obtain a more favorable judgment than that offered, and the question arose as to the amount of costs to each party. Hand, J., allowed the plaintiff $12 and disbursements for his costs up to the time of the offer, but disallowed all subsequent costs and disbursements, including the disbursements on entering judgment. He also allowed the defendant full costs, excepting $5 costs before notice of trial, but no costs of entering up a separate judgment for his costs. He disallowed extra costs to the defendant (Keese v. Wyman, 8 How. 88; and to the like effect is Burnett v. Westfall, 15 id. 431).
b. Judgment.—The judgment may be entered without the direction of & judge (Hill v. Northrop, 9 How. 525).
§ 386. [339.] Defendant may offer to liquidate damages conditionally.
In an action arising on contract, the defendant may, with his answer, serve upon the plaintiff an offer in writing, that if he fail in his defence, the damages be assessed at a specified sum; and if the plaintiff signify his acceptance thereof in writing, with or before the notice of trial, and on the trial have a verdict, the damages shall be assessed accordingly.
§ 387. [340.] Effect of acceptance or refusal of offer.
If the plaintiff do not accept the offer, he shall prove his damages, as if it had not been made, and shall not be permitted to give it in evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses, incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expense shall be ascertained at the trial.
c. Effect of non-acceptance.-By not accepting an offer, the plaintiff does not waive his right to be paid the sum admitted by the answer, to be due (Dusenbury v. Woodward, 1 Abb. 443; and see Smith v. Olssen, 4 Sand. 711).
d. The mere acceptance of an offer is not obtaining judgment (Lippmann v. Petersburger, 9 Abb. 209).
Admission or Inspection of Writings.
§ 388. [341, 342.] (Am'd 1849.) Existing suits. Inspection and copy of books, papers, and documents, how obtained.
Either party may exhibit to the other, or to his attorney, at any time before the trial, any paper material to the action, and request an admission in writing of its genuineness. If the adverse party or his attorney fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing the admission, unless it appear to the satisfaction of the court that there were good reasons for the refusal. The court before which an action is pending, or a judge or justice thereof, may in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents, in his possession or under his control, containing evidence relating to the merits of the action or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.
a. This section is not a substitute for the provisions of the revised statutes, but is auxiliary thereto (Gould v. McCarthy. 1 Kernan, 575; Morrison ▼. Stur gis, 26 How. 177).___ The two systems may well stand together (Follett v. Weed, 1 Code Rep. 65; Dole v. Fellows, 1 Code Rep. N. S. 146; Davis v. Dunham, 13 How. 427; Pindar v. Seaman, 33 Barb. 140).
b. This section extends only to an inspection (which implies production) and a copy, and not to discovery (Brevoort v. Warner, 8 How. 321) and the right to an inspection to discover evidence, is not to be confounded with the production of books &c. as evidence on the trial (Lefferts v. Brampton, 24 How. 257).
a. The power of the court in a proceeding under this section is limited by the terms of the section. In the first instance, the court may order a party to give within a specified time, an inspection and copy or permission to take a copy of books, &c. ; if compliance with the order is refused, the court may exclude the paper from evidence, or punish the party refusing compliance or both, but it is erroneous to order a deposit of books, &c. and in default that the party be precluded from all defense and adjudged guilty of contempt (Prindar v. Seaman, 30 Barb. 140).
b. The provision in the revised statutes (2 R. S. 199, not inserted in the 4th edition of the revised statutes) as to the discovery of books, papers, &c., is as follows:
§ 21. The supreme court shall have power, in such cases as shall be deemed proper, to compel any party to a suit pending therein, to produce and discover books, papers, and documents, in his possession or power, relating to the merits of any such suit, or of any defence therein (9 Wend. 458; 20 id. 682; 5.Cow. 27; 2 Hall, 520).
§ 22. The court shall, by general rules, prescribe the cases in which such discovery may be compelled, and the proceedings for that purpose, where the same are not herein provided; and therein the court shall be governed by the principles and practice of the court of chancery, in compelling discovery, except that the costs of such proceedings shall always be awarded in the discretion of the court.
§ 23. To entitle a party to any such discovery, he shall present a petition, verified by oath, to the court, or to any justice thereof, or to any circuit judge in vacation, upon which an order may be granted by the court, or such officer, for the discovery sought, or that the party against whom the same is sought should show cause why the prayer of such petition should not be granted.
§ 24. Every such order may be vacated by the officer granting the same, or by the court,
1. Upon satisfactory evidence that it ought not to have been granted. 2. Upon the discovery sought being made.
3. Upon the party required to make the discovery denying on oath the possession or control of the books, papers, or documents ordered to be produced.
25. The court shall provide by general rules, for the staying of the proceedings of any party against whom such discovery shall have been ordered, either by the court or by any officer, until the same shall have been complied with or vacated.
§ 26. In case of the party refusing or neglecting to obey such order for a discovery within such time as the court shall deem reasonable, the court may nonsuit him, or may strike out any plea or notice he may have given, or may debar him of any particular defence in relation to which such discovery was sought; and the power of the court to compel such discovery shall be confined to the remedies herein provided, and shall not extend to authorize any other proceedings against the person or property of the party so refusing or neglecting.
§ 27. The books, papers, and documents, produced under any order made in pursuance of the preceding sections, shall have the same effect, when used by the party requiring them, as if produced upon notice according to the practice of the court.
c. By laws 1841, ch. 38, the like powers are given to the superior court of New York, the common pleas, recorders', and mayors' courts, and the rules of the supreme court are to apply.
d. The superior court of New York, is authorized by the foregoing provisions of the revised statutes to compel a defendant in a suit pending therein to make discovery of books, papers, and documents in his possession or power relating to the merits thereof, and which are necessary to the plaintiff to enable him to prepare for the trial (Gould v. McCarthy, 1 Kernan, 575).
a. Power of superior court.-The superior court of the city of New York has the same powers to compel discovery by the parties to a suit pending in that court which are conferred by the revised statutes on the supreme court (Id. confirming Moore v. Pentz, 2 Sand. 664)
b. Rules which govern the superior court.-In Hoyt v. The American Exchange Bank (8 How. 89; 1 Duer, 652), Bosworth, J., said, It is important that the views which govern the action of the court in these proceedings should be distinctly stated, in order that the cases in which a discovery may be made, and the manner in which it will be ordered to be made, may be understood. And he stated the views of the court as follows:
e. "If a party applies under the revised statues, and makes a case provided for by them and the rules made under them, he has a right to a discovery. The court will exercise its discretion in specifying the manner in which it is to be made. In ordinary cases, and unless indispensable to protect the rights of the party applying, it will not order an inspection to be given, or a deposit to be made.
d. "Sworn copies of books, entries, or papers and documents, to the discovery of which the applicant shows a right, will be ordered to be furnished.
e. "Enough must be stated to justify a presumption that entries, papers, or documents relating to a specified subject-matter exist, are in the possession or control of the other party, and that they will tend to establish some claim or defence of the party asking for the discovery, and that they are not in his possession or under his control. (Rule 15.)
f. "If in answer to the order, the opposite party denies fully and explicitly that there are any such entries, books, or papers under his control, that is an end of the application.
g. "He cannot be subjected to a fishing examination or investigation, with a view to ascertain the fact whether he has or has not books, papers or documents which may contain evidence relating to the merits of the action, or of the defence, unless he is examined as a witness, so that his deposition may be made evidence as well for as against him. (Code, § 389.)
h." According to the practice of the court of chancery, it was necessary to set forth in the bill the particulars of which the discovery was sought. The opposite party was not required to answer vague and loose surmises. An averment that the matters as to which a discovery was sought were material to the defence, was not sufficient. It was requisite to so state the case, that the court could see how they might be material on the trial of the suit at law.
i. "As soon as the answer was perfected, the defendant might move for costs, and to dissolve any injunction that had been granted staying proceedings at law until the discovery was made.
j. "It was almost a matter of course to grant both motions unless before the bill was filed he had been applied to for the discovery and had refused to make it, in which case costs were not allowed him (2 Barb. Ch. Pr. 106, 111, 115).
k. "The practice in case of applications under the revised statutes, is deemed to be well settled (18 Wend. 529; 2 Sand. 662).
7. "The applicant must state the particulars of which a discovery is sought, and enough to satisfy the court that it is in the power of the opposite party to furnish it, and that it is material for the support of the claim or defence of the applicant that it should be made.
m. "If the party answer distinctly and unevasively, that as to all or any of the papers or documents or entries of which a discovery is sought, there are no such papers or documents in his possession or under his control, and that there are no entries relating to the specified subject-matter, or except such as he has furnished copies of, the applicant must abide by the answer so far as the proceedings for discovery are concerned. If dissatisfied with the result of the proceedings, he must examine him
as a witness, or rely on such other evidence as he may be able to command.
a. "He has no right to have a general, inquisitorial examination of all the books, papers, and documents of his adversary, with a view to ascertain if perchance something cannot be found which will possibly aid him.
b. "If rules 14, 15, 16 and 17, are to be regarded as regulating the practice in applications under the revised statutes only, and as having no reference to proceedings under § 388 of the code, then a discovery can be directed to be made in only one of the modes specified in rule 16.
c. "Giving permission to take a copy, is necessarily giving power to inspect; as a copy cannot be made without inspecting the book, paper, or document to be copied.
d. "The only discretion which the court can exercise, under this section of the code, is in determining whether it will order an inspection to be given at all. If it grants a discovery under this section it has no discretion in directing the manner in which it is to be made. An inspection is to be given at all events, and the only alternative that can be presented to the party against whom the motion is made, is to either give a copy or submit to the inconvenience of allowing the petitioner to make a copy.
e. "If either party applies under the code, he should be required to make a case as strong and urgent as is deemed necessary to entitle him to a production and deposit of books, papers, and documents, instead of sworn copies. Neither reason, principle, nor policy, demands that a party's books and papers, or any part of them, should be submitted to the inspection of his adversary, when the court would not order them to be deposited in order that they might be inspected. Such an order should be made only in those cases in which one for production and deposit would be granted, unless an inspection was ordered as a substitute for deposit, on the sole ground that a deposit and production would be a substantial inconvenience to the owner of the books, papers, and documents, and would be of no benefit to the applicant beyond that which an inspection would confer.
f. "Where the sworn copies furnished in obedience to an order for a discovery indicate that the discovery may not be complete, it is proper for the petitioner to apply for a further order based on the return and previous proceedings, or on them and further affidavits, for an order requiring the opposite party to show cause at a time to be named why sworn copies should not be furnished of such other entries, papers, or documents, relating to the points as to which a discovery had been ordered, as the return and other papers may induce the court to believe to be in his possession or control; and unless the possession and control of such papers and documents, or the existence of such entries, be explicitly and unequivocally denied, a peremptory order would be granted."
g. At what stage of the action the order may be made.-The order may be made in any stage of the action (Miller v. Mather, 5 How. 160; Morrison v. Sturgis, 26 How. 177). It was there made and enforced before issue. To enable a defendant to make his defence (Stanton v. Del. Mut. Ins. Co. 2 Sand. 662; 2 Code Rep. 83; Powers v. Elmendorf, 2 Code Rep. 44; 4 How. 60; Gelston v. Marshall, 6 How. 398), or a plaintiff to reply or prepare for trial (b.) ; but it is doubtful if the order would be granted before service of a complaint in an action for libel, and to enable the plaintiff to frame his complaint (Keeler v. Dusenbury, 1 Duer, 660); and where the justice of the case requires it, the court will order the discovery of papers, &c, pending a trial before referees (Mechanics' Bank v. James, 2 Code Rep. 46).
h. Who may make the order. The power to order the production of books, &c, under this section, is limited to the court or a justice thereof, whether exercised under the code or the revised statutes. A referee cannot make the order (Frazer v. Phelps, 3 Sand. 741; 1 Code Rep. N. S. 214), unless, indeed, provision to that effect is contained in the order of reference.
¿. When the order will be granted.-The granting the order in all cases