p. 738Dedrick C. Pape, Respondent, v. J. J. Hobbs, Appellant.Headnote
Discovery and inspection — order too broad and containing preclusion clause modified.Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office May 17, 1923, permitting the plaintiff to inspect books of account and vouchers and other documents containing information showing the items of cost of coal sold to Brazilian and other South American customers from July 10, 1918, to October, 1919, inclusive, and to permit the making of copies thereof, and also from that part of the order which provides: “ Further ordered, that the defendant be and hereby is precluded from giving evidence upon the trial herein of any items of cost or expense of coal sold to Brazilian and other South American customers, from July 10, 1918, to October, 1919, inclusive, except such items of cost or expense as may appear in the books, vouchers or other documents as defendant may produce as aforesaid.”
The respondent admits that the order is too broad, and should be confined to such books, papers and other documents as show the cost of the coal to Lloyd Brasileiro and to the Ministerio de Marinha, and he also concedes that the order of preclusion is improperly placed in this order and should not be made until after the failure of the defendant to allow the inspection. An offer was made by the plaintiff to allow this modification in these two particulars, which was refused. The order should be modified as above stated, and as modified affirmed, without costs to either party. Present — Clarke, P. J., Smith, Merrell, McAvoy and Martin, JJ. Order modified as indicated in opinion, and as so modified affirmed, without costs to either party. Settle order on notice.