Opdyke v. Marble — 18 Abb. Pr. 266

Majority

p. 266

OPDYKE a. MARBLE.

Supreme Court, First District;

Special Term, October, 1864.

Headnote

Discoveby and Inspection.—Scandalous Affidavit.

The Bevised Statutes authorize the court to compel discovery and inspection of books and papers, only in cases where it would have been allowed by the principles or practice of the former Court of Chancery, and therefore it is not allowable in an action for libel.

An affidavit on information and belief that the books of a corporation or individuals will show the names of the proper defendants, is not sufficient foundation for an order for the discovery of such books.

The court cannot grant a discovery to ascertain the name of persons proper to be made parties to the action, but only to help the plaintiff in stating his cause of action.

The agents of a corporation cannot, in their individual capacities, be compelled to discover the books of the corporation ; and on a motion to require them to do so, the court will not enter into the question whether the incorporation is fictitious.

Scandalous portions of an affidavit may be stricken out.

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Motion by the plaintiff to compel two of the defendants to discover books, &e., and Cross-motion, to strike out a portion of the plaintiff’s moving affidavits.

A petition was presented by George Opdyke, the plaintiff, to compel the defendants, Mantón Marble and Elon Comstock, to discover the books of account of the “ World Company,” or of the proprietors of the “World” newspaper, for the purpose of discovering who the owners of the company were, and who would therefore be proper parties-defendants in this action, then being commenced against such proprietors for libel. The petition was supported by affidavits tending to show that Marble was the only person who appeared to be responsible for the paper, but was of no pecuniary means; and that others unknown to the plaintiff were necessarily associated with him.

One of the affidavits produced in support of the motion, by way of setting forth what the defendant knew as to the ownership of the “World” newspaper, detailed at some length, alleged changes of political principles and connection on the part of the “World” and Marble its editor, during previous years, and various changes of ownership involved therein, but averred ignorance as to who were the present proprietors. This matter was the portion struck out by the court on deciding the motion.

The motion and cross-motion were argued together.

James Emott and David D. Field, for the plaintiff.

I. A motion to strike out parts of an affidavit has no precedent to support it. In pleadings, one rule is, that the party objecting must specify particularly the portion objected to, and the whole of that portion must stand or fall together. If any part of it is relevant, the objection fails. (1 Russ. & My., 30.) The second rule is, that great latitude is to be allowed to parties in making their statements. (Dowl. Pr., 274.) The third rule is that whatever tends in any way to make out the case in hand is relevant. A discovery is proper for the purpose of ascertaining the responsible proprietors of the newspaper. This proposition is separable into two; jwst, that Marble & Comstock are not the real responsible editors and proprietors; and, second, that a copy of the books and papers of the concern would discover

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them. It is the first of these propositions, that the passages which are objected to tend to establish.

II. If the matter objected to is r el event, it is immaterial to inquire whether it is scandalous, that is, injurious to Marble’s reputation. The rule on this point is well settled.

III. The necessity for the discovery is apparent. Without it there may be an insuperable difficulty in the way of punishing a libel in this newspaper. The interests of society require that the man who assails another’s reputation should be made to answer for it in a way which will deter him from a repetition of the offence.

IV. The'motion is within the statute. It is necessary to enable the plaintiff to frame his complaint, and it is strictly conformed to the rules of the court. (2 Rev. Stat, 199, §§ 21-25; Code, § 388; Rule of Court 14.)

V. The objection that the discovery is wanted, not for the purpose of affecting the known, but the unknown defendants, has no solid foundation. It is sought from known defendants; it is sought for the purpose of affecting the complaint which is to be filed against them and others. Both objects are within the statute, and they are all that are required by it.

VI. A discovery from known defendants, for the purpose of charging unknown, is as old as the common law of England. Every bill in chancery, according to the ancient practice, had a clause called the confederating' clause, which ran this wise:

“ The said A. B. combining, and confederating with the said C. D., and with divers other persons, at present unknown to your ' orator, and whose names, when discovered, your orator prays, may be inserted in this bill, with apt words to charge them as parties thereto,” &c. (3 Hoffm. Ch. Pr., 8.) This clause the defendant was obliged to answer, and when answered, the plaintiff might insert the names of the newly discovered persons as parties-defendants. (Morgan a. N. Y. & Albany R .R. Co., 10 Paige, 290; Bogardus a. Rosendale Man. Co., 7 N. Y., 147 .) Bills of discovery are abolished by the Code, § 389. If a discovery cannot be had upon motion, or by examination of a party, there remain no means of ascertaining the names of unknown defendants in the cases just mentioned.

VII. The fact that this is an action for a libel, does not take the case out of the rule just stated. The discovery sought for

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is not for the purpose of charging Marble & Comstock, but other persons. If the action were at issue, each defendant could be asked on the trial if the other defendants were concerned in publishing the paper. Discovery has been often compelled in actions for libel and for fraud. (12 C. B. N. S., 249; 15 Ib., 839, 844; 10 Abbotts; Pr., 345; 6 Hurls & N., 749.)

Bowdoin, Larocque & Barlow, for the defendants.

The motion made by the plaintiff is under the provisions of the Revised Statutes, for a discovery of books, &c., of “The World Company.” The object of the discovery is alleged to be for the purpose of enabling the plaintiff to prepare his complaint with the names of real defendants, to be inserted in the place of certain fictitious names contained in the summons.

The action is to recover damages for an alleged libel published in the newspaper called “The World,” of which those defendants whose real names are inserted in the summons, are editors or publishers.

There are several reasons why this motion must be denied.

1st. By the Rev. Stat., 199, § 22, this court are to prescribe rules regulating the proceedings for a discovery, in which the court are required to be governed by the principles and practice of the Court of Chancery in compelling discovery. Neither the Revised Statutes nor the rules can, therefore, be invoked as authority for ordering a discovery in any case where it would not have been allowed by the principles or practice of the late Court of Chancery. Nothing is better settled than that no discovery could be obtained under the practice of that court in an action for libel.

2d. There is not a single statement in the moving-papers, showing what entry exists in the books, &c., of which a discovery is sought, which would disclose the names of those whom the plaintiff might desire to join as parties-defendants. He says he is informed and believes that these books, &c., will show, &c.

That is not sufficient. What entry, or what name is there to be found, he does not pretend that he can state, even on information or belief.

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Parties are not to be allowed to fish for evidence in the private books of account' of others who are parties to an action, upon a simple guess that there may be some entry that will help their case.

3d. The discovery is not necessary to enable the plaintiff to frame his complaint.

Such a discovery is to obtain facts necessary to state the cause of action. Here the discovery has no relation to the cause of action. It relates only to the parties to the action. The facts which are the cause of action are well known to the plaintiff. The discovery is only to find out who he can sue for it.

Such is not the office of a discovery under the practice of courts of law.

4th. It appears from the moving-papers that the books, &c., of which a discovery is sought, belong to a corporation called “ The World Company,” and not to the parties who are defendants in the action, either real or fictions.

The individual defendants against whom the proceeding is instituted, cannot be compelled to produce account-books over which they have no control, except as agents of the corporation.

It is true the plaintiff alleges that the corporation is a sham, but that is a question that cannot be settled on a motion. Prima-faoie the conclusion must be otherwise.

The motion cannot be sustained under the Code, § 388. Indeed, it was not suggested at the argument that the application was made pursuant to the provisions of the Code.

The authority for a discovery under the section of the Code just referred to, resides in the discretion of the court, only where the books, &c., sought to be discovered, contain evidence relating to the merits. By the merits, as there mentioned, the facts material to the prosecution or defence of the action are referred to; not the names of the parties. The names of the parties have no relation to the cause of action, or its merits.

The motion for discovery is denied, with $10 costs.

In respect to the motion to strike out portions of the affidavit of Wm. S. Opdyke as scandalous, &c., the motion is granted

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as to that part through which I have 'drawn a pen in the accompanying copy, with $10 costs.

I do not think it necessary to consider the question as to how far the attorney and counsel ought to be made liable for the costs of this motion.

I shall not attempt to perform the duty of a disciplinarian on the suggestions of others, except in those cases of misconduct where I will be certain that I do not lend myself to gratify the personal animosities of political adversaries.

I do not wish to be understood as asserting that such is the case here, but it is not free from a doubt.