Majority
p. 376Memphis Trotting Association, Respondent, v. Elmer E. Smathers, Appellant. First Department, July 12, 1906.
Headnote
Discovery—moving affidavit insufficient.A defendant moving to obtain the inspectipn of an affidavit which appears to have been destroyed and which was the ground of the allegations of the complaint made on information, must show in his moving papers that a copy is in existence and that he asks for an inspection of such copy.
Appeal by the. defendant, Elmer E. Smathers, from an order of the Siqireme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 5th day of June, 1906.
Action to recover a gold cup, alleged to have been obtained by defendant through a conspiracy to drug “ Lou Dillon ” so that the defendant’s horse, “Major Delmar,” would win in a certain trotting race.
The order from which this appeal is taken denied a petition of the defendant that he he permitted to take a copy of the affidavit of one Sanders relating to said conspiracy, which the verification of the complaint states is a ground of the information of deponent as to matters stated on information and belief. The petition further states that the affidavit in question is in the control of plaintiff’s attorney.
p. 377
John J. Adams, for the appellant.
John F. Cloonan, for the respondent.
It would appear that the original affidavit has been destroyed, and solely because of the insufficiency of the papers in showing that a copy is still in existence, and the fact that no motion was made for the inspection of such copy, we think that the proper disposition will be to affirm the order, with ten dollars costs and disbursements, but with -leave to move for the inspection of the copy if so advised. • .
Present — O’Brien, P. J., McLaughlin, Laughlin, Clarke and Houghton, JJ.
Order affirmed, with ten dollars costs and disbursements, with leave to move for inspection of copy affidavit, if so advised. Settle order on notice.