Title Guaranty & Surety Co. v. Culgin Pace Contracting Co.

This is an appeal from an order of the City Court denying a motion made by certain of the defendants for an inspection and leave to copy a contract of indemnity which was given to the plaintiff, i Sections 803 and 804 of the Code of Civil Procedure provide that in a proper case the defendant is entitled to a discovery from his adversary “ of a book, document or other paper in his possession or under his control, relating to the merits of the action, or of the defense therein,” and also to an “ inspection and copy or permission to take a copy.” It is not claimed that the appellants herein did. not *158show the materiality and necessity for such inspection and to copy the instrument, and the respondent’s attorney states in his brief that “ the respondent is not contending that this Court has not the power and authority to order a discovery of a document that is the basis of a suit.” It objects, however, to the appellants having a copy, “ for it believes that it is only a scheme to devise technical defenses to avoid a fair and honest liability.”

The record shows no facts that support the assertion that the appellant is not acting in good faith. Moreover, one of the purposes of the section of the Code is to allow the appellant to obtain information as to the true character of the instrument sued upon; and," if it appears from the instrument that there is any defense, even technical, which the law recognizes, he should he given the opportunity to plead such ■ defense. The order must, therefore, he reversed and the motion granted.

Lehman and Bijur, JJ., concur; Seabury, J., taking no part.

' Order reversed, with'" ten dollars costs and disbursements, and motion granted.