in the action itself; but the object for which discovery will be ordered is not to prevent a defendant from answering untruthfully (id.) It may be very much desired by a defendant to know, before he answers, what facts the plaintiff may be able to prove, and what admissions or evidence statements and accounts rendered by him to the plaintiff may contain; and such knowledge might perhaps serve as a useful precaution, admonishing the defendant what he may not, with safety to his reputation, aver or deny; but such considerations are no reasons for compelling a discovery to enable the defendant to answer (id.)

a. Where an instrument, i. e., an undertaking, in the possession of the plaintiff, is set out or referred to in the complaint, and the defendant is "in doubt as to the correctness of what purports to be a copy in the complaint, he may demand from the plaintiff or his attorney an inspection of the original instrument before making answer; and if an inspection is refused, the court would order its production" (Wesson v. Judd, 1 Abb. 254).

b. In an action on a book account for goods sold and delivered the defendant by C. & H., the assignors of the plaintiff, the defendant set up a counter-claim, and an order had been obtained calling on him to deliver particulars thereof; he then moved at chambers on petition, “that plaintiff be ordered to produce and discover to defendant the day-books, journals, ledgers, lumber-books, memorandum-books, and receipts of C. & H.," and that defendant may be at liberty to inspect the same at all reasonable times; and that he, defendant, could not give dates and items of his counter-claim without such inspection. The plaintiff admitted possession of the books referred to. The court ordered plaintiff to deliver sworn copies of the entries of the credits to the defendants on the books in the possession of the plaintiff (Brevoort v. Warner, 8 How. 321).

c. 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 defense (Stanton v. Del. Mut. Ins. Co. 2 Sand. 662; Powers v. Elmendorf, 4 How. 60; Gelston v. Marshall, 6 How. 398), or a plaintiff to reply or prepare for trial (ib.); 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). Where the defendant's demurrer has been overruled, and defendant has appealed from the order overruling his demurrer, a motion for discovery of defendant's books, &c., and to enable plaintiff to prepare for trial, is premature until the decision of such appeal (Palen v. Johnson, 18 Abb. 304).

d. 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). If the action is in a county court, the county judge may make the order (Broderick v. Shelton, 18 Abb. 213).

e. Motion, how made.—“A party seeking a discovery has two concurrent remedies to which he may resort. He may make his application in the manner prescribed by the revised statutes, or he may proceed under the code" (Davis v. Dunham, 13 How. 427). The application may be so framed as to embrace a discovery under the code and a production of papers under the rules (Lovell v. Clark, 7 How. 158).

f. The motion to compel the production and discovery of books, &c., is to be made "in the manner provided by law" (Rule 14); and the manner provided is by petition (Dole v. Fellows, 5 How. 451; Follett v. Weed, 1 Code Rep. 65). The petition should be addressed to "The Supreme Court of the people of the State of New York" (Re Buckhout, 21 Barb. 348). But the application

will not be denied on the ground that the application was by motion and not by petition (Johnson v. Consol. Silver Mining Co 2 Abb. N. S. 413). When the motion is made pending a trial before a referee, the certificate of the referee that the production of the papers, &c., is necessary, will be considered by the court as presumptively sufficient to warrant the making the order (Frazer v. Phelps, 3 Sand. 741).

a. One of the first facts which should appear on an application for a discovery of books and papers, for the purpose of preparing for trial, is, that the applicant has not in his possession the same information, or if he has, that he has not the means of establishing by other available proof the contents of such books or papers (Jackling v. Edmonds, 3 E. D. Smith, 529; McAllister v. Pond, 15 How. 299). For, ordinarily, a discovery will not be ordered where the facts sought to be proved thereby can be established without such discovery (Low v. Graydon, 14 Abb. 443; Woods v. De Figaniere, 25 How. 522; Pegram v. Carson, 10 Abb. 340). It is not sufficient for the applicant to say he thinks a discovery necessary (Wilkie v. Moore, 17 How. 480); nor that, as he is advised" or "advised by counsel," such discovery is necessary (Strong v. Strong, 3 Rob. 675).

b. The rules contemplate the setting forth, in the moving papers, the facts and circumstances which show that the discovery is necessary, and that the party applying therefor is entitled to demand it of the adverse party. A mere statement, that in the opinion of counsel the discovery sought is necessary, will not suffice. Such a statement is requisite, but it is cumulative (McAllister v. Pond, 15 How. 299; Jackling v. Edmonds, 3 E. D. Smith, 529; Speyers v. Torstritch, 5 Rob. 606; Merguelle v. Cont. B'k Note Co. 7 Rob. 77).

c. The documents required to be produced should be specially set forth (Jackling v. Edmonds, 3 E. D. Smith, 529; and see Watson v. Renwick, 4 Johns. 381), with sufficient precision to enable the opposite party to know with certainty what are the documents required (Low v. Graydon, 14 Abb. 443; Walker v. Granite Bank, 19 Abb. 111; Merguelle v. Cont. B'k Note Co. 7 Rob. 77). Where, on an application for the discovery of minutes kept by the defendants from 1696 to 1716, the petition stated that the petitioner "is informed and believes that such minutes contain evidence" in favor of the plaintiffs,―held not sufficient to warrant any order for production. To warrant an order, the minutes should have been described with sufficient certainty to enable the defendant to ascertain whether they existed in his possession and to enable the court to judge of their materiality (The People v. Trinity Church, 6 Abb. 177).

d. In every case the party seeking the discovery must show, to the satisfaction of the court or officer, that the books or papers which he seeks to have produced, contain evidence relative to the merits of the action (Davis v. Dunham, 13 How. 428; Cassard v. Hinman, 6 Duer, 695); because the order is never granted to produce papers, &c., other than those which relate to the merits (Keeler v. Dusenbury, 1 Duer, 661; Woods v. De Figaniere, 25 How. 522). An allegation that the books, papers, and documents "relate to the merits of the action" is wholly insufficient. The petition must show in what respect they relate to the merits, that the court may judge for itself (Cassard v. Hinman, 6 Duer, 695; Morrison v. Sturgis, 26 How. 177; Pegram v. Carson, 10 Abb. 340; 18 How. 519). Where the petition stated that the action was brought upon a note made by the defendants through their authorized agents, on, &c., and that the defense was a general denial, no other facts or circumstances were stated to support the general allegation that all the bill-books, day books, cash-books, and ledgers, in which the transactions and business of the defendants are entered, are material to enable the plaintiff to prepare for trial, and to sustain his complaint,-held that sufficient was not stated to warrant an order for discovery (Davis v. Dunham, 13 How. 428; 11 N. Y. 575). Where the necessity of the examination is alleged to be that the books will show a partnership, &c., but the affidavits do not allege the character of a single entry which the court can determine to be material, the motion will be denied (Kaupe v. Isdell, 3 Rob. 699).

a. To obtain a discovery, the parties cannot substitute their own judgment on vague information, the nature and source of which is not disclosed, for that of the court, enough must be shown to enable the court to decide that the discovery is necessary (Kaupe v. Isdell, 3 Rob. 699; Merguelle v. Cont. B'k Note Co. 7 Rob. 77).

b. Verification.—It is not necessary that the facts should be made to appear by the oath of the party. They may be shown by the oath of any other person (Exchange B'k v. Monteith, 4 How. 280), provided he has a knowledge of the facts (Strong v. Strong, 3 Rob. 675). Absence of the party will not excuse the absence of a positive affirmation, unless the source and grounds of the deponent's knowledge and belief on the subject are set forth (Walker v. Granite B'k, 19 Abb. 111).

c. Opposing application.-Where a discovery of a paper is sought, and it is stated on oath to have been delivered to the adverse party, to excuse himself from discovering it, he must swear positively that it is not in his possession or under his control, or must state facts which, with his denial on his knowledge, information, and belief, are equivalent to a positive negation on oath (Southard v. Dwight, 2 Sand. 672). The application must be denied, where the party against whom the application is made denies under oath that the books or papers sought for are in his possession or under his control (Bradstreet v. Bailey, 4 Abb. 233; Ahoyke v. Wolcot, id. 41; Hoyt v. Amer. Ex. Bank, 8 How. 89; 1 Duer, 652; see Woods v. De Figaniere, 25 How. 522; 1 Rob. 681). But where, on a motion founded on a petition under the provisions of the revised statutes for the deposit of books for inspection, the affidavit to resist such motion did not deny possession or control of the books, &c., but alleged that deponent "has made diligent search therefor, and has been unable to find any such books, &c., and that the same are not now in his possession or under his control, and he is unable, from any knowledge he has, to produce such books," &c., was held to be evasive, and not sufficient to defeat the motion (Hicks v. Charlick, 10 Abb. 129).

d. An application under the provisions of the revised statutes for a discovery of books, &c., should be denied where it appears that the petitioner might, without any order, have access to the books, &c., mentioned in the petition for discovery (Charlick v. Flushing R. R. Co. 10 Abb. 130). As where it appeared that the petitioner was one of the directors of a corporation to which the books and papers belonged, and the custodian of them held them subject to the control of the board thereof (id.) And where it appeared that the books of the defendants, of which discovery was sought, had been freely offered to the plaintiff's attorney for examination and inspection, and he had omitted to avail himself of the opportunity, the order was denied (McAllister v. Pond, 15 How. 299).

e. Order. Where the order for the discovery is made by the court, it may, in addition to ordering production, order that in default, the document should not be given in evidence, and that the complaint be dismissed; but where the order is made by a judge, it should not go beyond ordering the production (Broderick v. Shelton, 18 Abb. 213). An order directing the deposit of certain books "and all other books of the defendants containing any entries showing," &c., was reversed on appeal (Walker v. Granite Bank, 44 Barb. 39; 19 Abb. 111; and see Julio v. Ingalls, 17 Abb. 448, note).

f. In Brevoort v. Warner (8 How. 321), the order was that the party asking for the copies should pay for them, unless the other party preferred allowing him to take copies without charge.

g. Further discovery.-Where an order was made under this section for the defendants to furnish sworn copies of all entries, &c., as to certain Indiana bonds, &c., the defendants furnished certain papers, and afterward the plaintiff moved for a more full and perfect discovery; and on the hearing of that motion, an order was made referring it to a referee to ascertain and report whether the defendants had made as full a discovery as circumstances permitted, and that the referee might examine defendant's books, &c. From this

order the defendants appealed, and the order was set aside, the general term holding that if the return was deemed insufficient, a further return, and not a reference, should have been ordered (Hoyt v. Amer. Exchange Bank, 8 How. 89; 1 Duer, 652).

a. Refusing to make discovery.-The code does not authorize an order precluding the defendant from a defense or from controverting certain facts as a penalty for his refusal to make discovery of books and papers, but confines the consequences of such discovery to the exclusion of the documents as evidence and the punishment of the party (Woods v. De Figaniere, 1 Rob. 681; and see Broderick v. Shelton, 18 Abb. 213); as to punishing for contempt in not making discovery see Ackroyd v. Ackroyd, 2 Abb. N. S. 381, and Rule 16.

b. Inspection.—On an order that one of several defendants should allow the plaintiff, his solicitor or agent, to inspect certain documents in that defendant's custody, that defendant is justified in refusing to allow the inspection in the presence of a codefendant, although he be agent of the plaintiff. If it is desired that the codefendant also have an inspection, the order should so state (Bartley v. Bartley, 22 Law J. R. N. S. Ch. 47; 16 Jur. 1062; 1 Drewry, 233; 17 Eng. Law & Eq. R. 329).

c. On producing books, the party producing them may seal up those parts which do not relate to the matters in issue, and his affidavit that the parts sealed up do not relate to the matters in issue is prima facie sufficient to protect such parts from examination. His affidavit may be rebutted (Titus v. Cortelyou, 1 Barb. 444).

d. Appeal from order.-An order for discovery of books and papers affects a substantial right and is appealable to the general term in the superior court of New York (Woods v. De Figaniere, 25 How. 522; 1 Rob. 681; contra, in the supreme court (White v. Munroe, 33 Barb. 650; 12 Abb. 357). Appeal from order for discovery allowed (Ansen v. Tuska, 19 Abb. 391; Julio v. Ingalls, 17 Abb. 448, note; Walker v. Granite Bank, 44 Barb. 39; 19 Abb. 111; Strong v. Strong, 1 Abb. N. S. 233; Broderick v. Shelton, 18 Abb. 231).

CHAPTER VI.

Examination of Parties.

SECTION 389. Action for discovery abolished.

390. A party may examine his adversary as a witness.

391. Such examination also allowed before trial. Proceeding

therefor.

392. Party, how compelled to attend.

393. Testimony of party may be rebutted.

394. Effect of refusal to testify.

395. Testimony of a party not responsive to the inquiries may be rebutted by the oath of the party calling him.

396. Persons for whom action is brought or defended may be examined.

397. Examination of coplaintiff or codefendant.

§ 389. Action for discovery abolished.

No action to obtain discovery under oath, in aid of the pros

ecution or defense of another action, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter.

§ 390. A party may examine his adversary as a witness. A party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in the same manner, and subject to the same rules of examination as any other witness, to testify, either at the trial, or conditionally, or upon commission.

a. Restriction on party as a witness.—A party to the suit who is made a witness by statute, is to become such under the same requisitions and restrictions as any other witness. He must be of sane mind, of sound memory, of suitable age, willing to be sworn, and capable of taking an oath (Arnold v. Arnold, 13 Verm. 370; see Forward v. Harris, 30 Barb. 338; Burnett v. Har ris, 50 Barb. 379; Rivenburg v. Rivenburg, 47 Barb. 419; Ketchum v. Tyson, 3 Murphy's Law & Eq. 314).

¿. Åttesting witness must be called.—The law which renders the parties to a suit competent and compellable to give evidence, has not altered the rule of law which requires the execution of attested instruments to be proved by the subscribing witness (Whyman v. Gath, 17 Jur. 559; 22 Law J. Rep. (N. S.) Ex. 316; 19 E. L. and E. R. 359; and see Story v. Lovett, 1 E D. Smith, 153; Jones v. Underwood, 28 Barb. 484; King v. Smith, 21 Barb. 158.) c. Account-books.-The code has not abrogated the rule of law admitting account-books as evidence in certain cases (Tomlinson v. Borst, 30 Barb. 42; Stroud v. Tilton, 3 Keyes, 139). To render account-books competent evidence, the party must prove that during the period the charges were made, he kept no clerk, that some of the articles charged for were delivered, that the books are his account-books, and that he keeps correct accounts (Tomlinson v. Borst, supra; and see Conklin v. Stamler, supra). The books cannot be discredited by proving the party's general bad character (id.)

d. Perpetuating testimony.-Proceedings under the revised stat utes to perpetuate testimony (2 R. Š. 398) may still be resorted to. The dictum to the contrary in Keeler v. Dusenbury (1 Duer, 660), is not followed. On an application to perpetuate testimony it should appear that the application is made in good faith (Paton v. Westervelt, 5 How. 399).

e. Fees for attendance.-When a party to the action is made a wit ness by his adversary, he is entitled to be paid witnesses' fees, as a condition to creating it his duty to attend, and be sworn as one who is not a party to the action (Hewlet v. Brown, 1 Bosw. 655; 7 Abb. 74; Woods v. De Figaniere, 1 Rob. 607; Draper v. Henningsen, 1 Bosw. 614; Taggard v. Gardner, 2 Sand. 669).

f. Production of papers on subpœna duces.—A party to an action may, at the instance of the adverse party, be compelled by the process of subpoena duces tecum, not only to appear at the trial and submit to a personal examination, but to produce books and papers in his possession, precisely as any other witness may be so compelled. And a witness, when properly subpœnaed, is as much bound to produce books and papers in his possession as evidence, as to testify orally; and his neglect of either is a contempt of court (Bonesteel v. Lynde, 8 How. 226; affirmed on appeal at the general term, and see Garighe v. Losche, 6 Abb. 284, note; 14 How. 453; Woods v. De Figaniere, 16 Abb. 159; The People v. Dyckman, 24 How. 222; Brett v. Bucknam, 32 Barb.