Société Anonyme des Glaces Nationales Belges v. Kahn

Majority

p. 919

First Department,

November, 1908.

Société Anonyme des Graces Nationales Belges, Respondent, v. Jacques Kahn, Appellant.

Headnote

Discovery—sale—inspection of looks and papers.

Appeal by the defendant from an order, entered in the New York county clerk’s office on the 16th day of June, 1908, granting a discovery and inspection of cer^ tain papers, letters and documents in the possession of the defendant.

The action is to recover for goods sold and delivered. The plaintiff’s claim is that one Rochez Vander Elst was the agent of the defendant, through whom the sales were made. To sustain the plaintiff’s case it must establish affirmatively that said Vander Elst was the agent of the defendant. The books, papers and documents of which it desires a discovery and inspection it is claimed contain such evidence. Plaintiff has brought itself within the provisions of sections 803-809 of the Code of Civil Procedure and rules 14-16 of the General Rules of Practice. We think, however, that the order should be modified by striking therefrom the following clause: “ All letter press or other copies of letters and cables sent by the defendant to Hazard Freres at Paris, and other bankers in Europe, respecting the defendant’s business relations with said Rochez Vander Elst during the same period, now in the defendant’s possession or under his control; ” and as so modified affirmed, without costs. Present—Ingraham, McLaughlin, Clarke, Houghton and Scott, JJ. Order modified as directed in opinion, and as modified affirmed, without costs. ■ Settle order on notice.