Stichter v. Tillinghast

Appeal from an order permitting plaintiffs to inspect the books and accounts of defendant’s assignor. This order was applied for and granted after issue was joined, but it has-been twice held that a discovery may be had after issue joined, under article 4, title 6, chapter 8 of the Code of Civil Procedure, and for grounds other than those specified in the fourteenth rule of the Supreme Court. (Amsinck v. North, 2 Month. L. Bul., 67; affirmed, 62 How., 114; S. C., 12 N. Y. W. Dig.; 573; Babbitt v. Crampton, 1 N. Y. Civil Proc. R., 169; S. C., 12 N. Y. W. Dig., 13.)

An application after issue joined must show that the discovery is sought to aid the applicant to prove his cause of action, or his defense. (Douglas v. Delano, 20 N. Y. W. Dig., 85 ; Andrews v. Townshend, 2 N. Y. Civil Proc. R., 76; S. C., 16 J. & S., 162; The Shoe and Leather Reporter Assn. v. Bailey, 17 id., 385; Mott v. The Consumers' Ice Co., 52 How., 148; 2 Wait’s Pr., 531; Baylie’s Trial Pr., 120; Hare on Discovery [3d Am. ed.], 197. The General Term of the Supreme-Court, of the Superior Court, and of the Court of Common Pleas are in accord on this question.

This court held, in Adams v. Cavanaugh (37 Hun, 232), that a party cannot be examined under article 1, title 3, chapter 9 of the Code of Civil Procedure, except for the purpose of proving *97the applicant’s cause of action or defense. The papers upon which this order was granted do not show, or even allege, that the books will furnish evidence which will aid the plaintiffs to establish their cause of action. There seems to be no excuse in this case for the omission of definite allegations, as the plaintiffs’ counsel has been permitted to examine the books for two days, and defendant offered a further examination and to permit them to be examined by an expert, to be agreed upon by the parties. An examination under an order seems to be sought because defendant refused to permit an examination' by an expert unknown to him and not named by plaintiffs.

We think the allegations in the moving papers insufficient to support the order. The view taken of the merits of this appeal renders it unnecessary to consider whether Supreme Court Rule 37 was a bar to granting this order upon an order to show cause, returnable out of the judicial district in which the venue of the action was laid.

The order should be reversed, with ten dollars costs and printing disbursements, and the motion denied;, with ten dollars costs, but withoxxt prejudice to the right of the plaintiffs to make a new application for discovery upon the payment of the costs.

Order x-eversed, with’ ten -dollars--costs and disbursements, and motion denied, with ten dollars costs, without prejudice to the right of a new application for discovex-y upon the payment of costs.