Nevins v. Brooklyn Citizen

The certificates of indebtedness, which are the subject of this action, when read in connection with the contemporaneous agreement, clearly indicate that they are payable when defendant is in a financial condition to enable it to make such payment consistently with meeting all its obligations, including the other certificates issued under said agreement and of conducting its business of publishing a newspaper. This question must be determined by evidence. If there is no conflict of testimony and no room for different inferences to be drawn from the undisputed facts, its ability to pay becomes a question of law. If there is conflicting evidence, or if different *220inferences may be drawn therefrom, its ability to pay becomes a question of fact. If, at any time subsequent to the issuing of said certificates, such ability to pay existed, the obligation thereon became due. Plaintiff was, therefore, entitled to a complete discovery of the books of defendant for the entire period between the date of issuing said certificates and the date of the commencement of the action. (Code Civ. Proc. § 803.) There is an inconsistency in the order as made at Special Term which limits such discovery to two years. Plaintiff was entitled to a full discovery or to none at all. So much of the order as is appealed from should be reversed, with ten dollars costs and disbursements, and motion granted permitting plaintiff a discovery for the entire period between February 23, 1895, and the date of the commencement of the action.

Jenks, P. J., Burr, Stapleton, Rich and Putnam, JJ.> concurred.

Order in so far as appealed from reversed, with ten dollars costs and disbursements, and motion granted permitting plaintiff a discovery for the entire period between February 23,1895, and the date of the commencement of the action.