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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 defense 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. Inspection, in what cases.-This section is not a substitute for the provisions of the revised statutes (2 R. S. 199), but is auxiliary thereto (Gould v. McCarthy, 11 N. Y. 575; Morrison v. Sturgis, 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). 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). The code enlarges the remedy for obtaining discovery, &c., and if a party establishes, satisfactorily, that any document is in the possession or control of his adversary, containing evidence relating to the merits of the action or defense, its inspection may be ordered (Case v. Banta, 9 Bosw. 595). But the statute does not sanction an order requiring either party to disclose evidence which he intends to introduce against his adversary (Strong v. Strong, 1 Abb. N. S. 233).

b. The court has no power to order a draft, upon which the action is brought, to be delivered to defendants, for the purpose of being annexed to a commission to be inspected by the witnesses (Butler v. Lee, 19 How. 383). c. 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 from all defense and adjudged guilty of contempt (Pindar v. Seaman, 30 Barb. 140; see Rules 14, 15, 16, 17). It was not intended by the supreme court rules to confine the discovery of documentary evidence to the cases mentioned in the rule, but all proceedings instituted under section 388 must be governed by its provisions, uncontrolled and unaffected by the rule (Exchange Bank v. Monteith, 4 How. 280). For although the legislature has imposed upon the supreme court the duty of prescribing, by general rules, the cases in which a discovery may be compelled, and although this has been done, yet the court itself is not bound by these rules, but may compel a discovery in other cases than those prescribed (Davis v. Dunham, 11 N. Y. 575). But the court has no power, on motion, to compel a party to submit articles which are the subject of the action, and are neither books, documents, nor evidences, of themselves, to be inspected by third parties, to enable such parties to qualify themselves to testify as experts (Ansen v. Tuska, 1 Rob. 663; 19 Abb. 391).

d. The court will not grant a discovery to ascertain the names of persons proper to be made parties to the action, but only to help the plaintiff in stating his cause of action (Opdyke v. Marble, 18 Abb. 266; 44 Barb. 64). The agents of a corporation cannot, in their individual capacities, be compelled to discover the books of the corporation (id.), as a party cannot pro

cure the production of the books of a corporation by means of a subpœna duces tecum, the proper remedy of a party entitled to use such books as evidence is an application under this section or under the revised statutes (La Farge v. La Farge Ins. Co. 14 How. 26). As to the extent to which a corporation may be required to submit its books to inspection, see Johnson v. Consol. Silver Mining Co. 2 Abb. N. S. 413; Walker v. Granite B'k, 19 Abb. 111.

a. The granting or refusing the order rests very much in the discretion of the court (Keeler v. Dusenbury, 1 Duer, 660; Follett v. Weed, 1 Code Rep. 65; Van Zandt v. Cobb, 12 How. 544; White v. Monroe, 33 Barb. 650; see, however, Woods v. De Figaniere, 25 How. 522), and is never a matter of course (Hooker v. Matthews, 3 How. 329); and the order will never be granted where it appears that the party making the application is chargeable with gross negligence or bad faith (ib.), or where he can obtain the production of the paper, &c., by a subpœna duces tecum, ar an examination as a witness of the party having the custody of such paper either before or on the trial (Van Zandt v. Cobb, 12 How. 544; Com. Bank of Albany v. Dunham, 13 id. 541; Brevoort v. Warner, 8 id. 321; Stalker v. Gaunt, 12 N. Y. Leg. Obs. 124).

b. It is a matter of course to compel a party who has the possession of a document belonging equally to both, to produce the same for the inspection of his adversary, for the purpose of the action (Kelly v. Eckford, 5 Paige, 548; see 10 Abb 341, note). Partnership books and papers, in the hands of one partner or his representatives, will, in any stage of the action, be ordered to be deposited in court (Kelly v. Eckford, 5 Paige, 548); and where one party had possession of a letter, the property of his adversary, an inspection of it was ordered (Livermore v. St. John, 4 Rob. 12).

c. The power to order the production of books, &c., will never be stretched to cover those books, &c., which only furnish information to enable the party to procure evidence (Woods v. De Figaniere, 25 How. 522; Morrison v. Sturgis, 26 How. 177). And it is not sufficient that the books, &c., may, or probably will furnish information to obtain evidence which may be material. The book, &c., itself must contain the evidence (Morrison v. Sturgis, 26 How. 177; Woods v. De Figaniere, 25 How. 522; Pegram v. Carson, 10 Abb. 340). But in the New York common pleas it is held that an inspection of books and papers should be granted, if the books, &c., contain evidence which will prove or tend to prove a material fact (Lefferts v. Brampton, 24 How. 257).

d. Inspection to enable a party to prepare his pleading.An application for discovery of books, &c., to enable plaintiff to prepare his complaint, will be granted in an action against defendants as plaintiff's factors in selling his goods, the defendants not having rendered an account; but will not be granted to enable plaintiff to ascertain if an account rendered is correct (Ruberry v. Binns, 5 Bosw. 685). And an order may be made to enable a party to furnish a bill of particulars (Prince v. Currie, 2 How. 119). To warrant an order for inspection to enable plaintiff to prepare his complaint, "strong affidavits," showing the necessity for the discovery, will be required (Keeler v. Dusenbury, 1 Duer, 661; see Opdyke v. Marble, 18 Abb. 266;44 Barb. 64).

e. Where the application was to enable the defendant to answer, and no fact was stated showing how the discovery was necessary, but the petition merely stated that the aid of the discovery the defendant expected to be able to prove that the note, the cause of action, had been paid,-held, the petition was defective in not stating the facts the defendant expected to prove (Gelston v. Marshall, 6 How. 398; Stanton v. Del. Mut. Ins. Co. 2 Sand. 662). An order, requiring the plaintiff to produce or give copies of papers to enable the defendant to answer, will not be made when it is manifest that the defendant has no defense which he cannot set up in due legal form, to raise the proper issues, without the aid of such papers (Mora v. McCredy, 2 Bosw. 669). Discovery may be ordered to assist the defendant to facts without which he cannot frame an answer which will protect his rights

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 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

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