Majority
p. 46KROOKS v. L. & C. WISE CO. N. Y. Supreme Court, Special Term, First District; October, 1893.
Headnote
Discovery and inspection ; attachment.] Upon motion to vacate an ex parte order obtained by plaintiff directing the sheriff to take possession of defendant’s books of account under an attachment, and to permit the plaintiff to examine them, it appeared that the books were locked up in defendant’s safe, and that the sheriff did not have the combination.—Held, that the ex parte order should be modified by striking out the direction to the sheriff to take possession of the books, as it might be construed as a direction to break open the safe and destroy property; but that plaintiff might have an order directing the sheriff to allow him to examine any books in the sheriff’s possession, or which may come into his possession, under the attachment, so far as may be necessary to discover property upon which an attachment might be levied.[1]
p. 47
Motion to vacate an order.
An action was commenced by Samuel J. Krooks, •against the L. & C. Wise Company by the issuance of a warrant of attachment, and a levy was made thereunder by the sheriff on September 27, 1893.
Upon an affidavit of plaintiff’s attorney, stating that the sheriff had levied upon a stock of merchandise belonging to defendant; that there were at plaintiff’s place of business certain books of account belonging to •defendant which deponent believed would show the whereabouts of the attached property and which deponent desired to inspect; and that deponent requested the sheriff to take said books into his possession, but the sheriff had refused, the following ex parte order was granted on September 28, 1893 : “ Ordered that the sheriff of the City and County of New York take into possession the books of account of the defendant under the attachment herein, ■and that the sheriff permit the plaintiff or his only authorized agent forthwith to examine such books at such place as may be convenient. ”
p. 48
In support of the motion to vacate such order, the affidavit of the deputy sheriff stated that he had seized certain merchandise belonging to defendant and also defendant’s safe, in which deponent was informed and believed the books of account of defendant were contained ; that deponent did not have the combination of said safe and was unable to open it, and had not yet attempted to open, the same.
John H. V. Arnold, for the motion.
Blumenstiel & Hirsch, opposed.
The ex parte order granted on September 28th should be modified by striking out the
p. 49
direction to the sheriff to take into his possession the books of account. The law prescribes what the sheriff must do, and he must act or refuse to act at his peril. The order, as it stands, might well be construed as a direction from the court to break open safes and destroy property. A new order may be entered simply directing the sheriff to allow the plaintiffs to examine any books in his possession so far as may be necessary to discover property upon which the attachment may be levied.
Settle order on notice.
Under the above opinion the following order was entered: “ Ordered that the order dated September 28, 1893, be and the same hereby is vacated ; but it is further ordered, that the sheriff of the City and County of New York permit the plaintiff herein forthwith to examine any books which he now has or may hereafter get into his possession under the attachment herein so far as may be necessary to discover property upon which the attachment herein may be levied.”