New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co.

Majority

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New York Bank Note Company, Respondent, v. The Hamilton Bank Note Engraving and Printing Company, Appellant, Impleaded with The Kidder Press Manufacturing Company.

Headnote

Discovery of letters and letter-press copies out of the State — what proof is necessary to make letter-press copies competent evidence— General Rules of Practice No. 14, subd. 3.

Upon an appeal from an order granting a discovery of certain letters and letterpress copies of letters, it appeared that it was necessary, upon the trial of the action, for the plaintiff to show that the defendant, The Hamilton Bank Note Company, had knowledge of a certain contract between the plaintiff and the defendant, The Kidder Press Manufacturing Company, which latter was a foreign corporation, whose papers and documents were in the State of Massachusetts. The original letters written by The Kidder Press Manufacturing Company to The Hamilton Bank Note Company were in the possession of the latter, and letter-press copies of the letters written by The Hamilton Bank Note Company to The Kidder Press Manufacturing Company were in the possession of The Hamilton Bank Note Company.

Held, that the letters and letter-press copies were papers or documents in the possession or under the control of The Hamilton Bank Note Company, and were material to the decision of the action, and were clearly within subdivision 3 of Rule 14 of the General Rules of Practice;

That the letter-press copies would be competent evidence if a notice was given to The Kidder Press Company to produce the originals and such production was refused.

Appeal by the defendant, The Hamilton Bank Note Engraving and Printing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of February,

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1896, granting a discovery of certain original letters and letter-press copies of letters.

William T. Turner, for the appellant.

Edward P. Lyon, for the respondent.

The only objections taken by the appellant to this order, is that the court below has not power to order a discovery of letter-press copies of letters; second, that the discovery is improperly granted of documents of which the moving party has copies. The application is for a discovery of letters between the two defendants. It is necessary for the plaintiff to prove upon the trial that the defendant, The Hamilton Bank Note Company, had knowledge of the contract between the plaintiff and The Kidder Press Manufacturing Company. The Kidder Press Manufacturing Company is a Massachusetts corporation; its papers and documents are in the State of Massachusetts, and not within the jurisdiction of this court; and the plaintiff has endeavored to obtain proof of these letters by a commission and has failed to prove them by competent evidence. The application is to procure the discovery of documents that will be material and necessary evidence upon the trial, and it is quite apparent that it will be impossible to compel the production of the letters which are in Massachusetts by a subpoena duces tecum, and the plaintiff should not be placed in a position where it may be met upon the trial by an objection to the production of the letters by*the defendant, The Hamilton Bank Note Company, on the ground that the proper officer was not served with a subpoena, that the letters had been removed beyond the jurisdiction of the court, or by any of the other usual obstacles which are thrown in the way of a party endeavoring to obtain documents in the possession of his adversary. The original letters in the possession of the defendant, The Hamilton Bank Note Company, are clearly competent evidence. The letter-press copies of the letters written by The Hamilton Bank Note Company to The Kidder Press Company, would be competent evidence if a notice had been given to the defendant, The Kidder Press Company, to produce the originals, which was not complied with, and the copies were properly proved. These letters and copies

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of letters are clearly papers or documents in the possession or under the control of the appellant, and are material to the decision of the action, competent evidence in the case, and thus clearly within subdivision 3, rule 14 of the General Rules of Practice.

The appellant does not deny in the affidavit submitted in opposition to this motion that it has these letters and letter-press copies in its possession, and we think the court below was clearly justified in granting the motion.

Order appealed from affirmed, with ten dollars costs and disbursements.

Present — Barrett, Rumsey, Williams, Patterson and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.