Duffy v. Consolidated Gas Co. — 59 A.D. 580

Majority

p. 580

Alice Duffy, as Administratrix, etc., of Nicholas Duffy, Deceased, Appellant, Respondent, v. Consolidated Gas Company of New York, Respondent, Appellant.

Headnote

Examination and inspection of the books of a corporation under the ‘Code of Gvcil Procedure, § 872, subd. 7 — limited to their use by 'a witness under examination.

Subdivision 7 of section 872 of the Code of Civil Procedure, relating- to, an examination and inspection of the books of a corporation, is intended to compel the- production of such books, in order that they may be used in connec- - tion with the examination of á witness who can thus be required to testify from them, and not for the purpose of allowing an inspection or examination thereof by the adverse party. .

Cross-appeals by the plaintiff, Alice Duffy, as administratrix, etc.,' of Nicholas Duffy, deceased, and by -the defendant, the Consolidated Gas Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the cleik of the county of New York on the ¿1st. day of January, 1901, denying a motion to vacate an order for the examination before trial of the defendant and its officers,,and limiting the scope of the examination to certain particulars.

Roger Foster, for the plaintiff.

David McClure, for the defendant.

It does not- seem, to be in harmony with the provisions of the Code in regard to discovery, that in this proceeding the books of a corporation can be produced for the purpose of inspection by the adverse party. It is true that the 7th subdivision of section 872 of the Code speaks of an examination and inspection of books; but it is clear, in view of the other provisions of the Code in regard to the discovery of books and papers, that this was infelicitous language, and that all that the provision was intended for was to compel the production of the books of a corporation, which might be used in connection with the examination of a witness, who would be able to testify from the books, and who would not be able to thwart the purposes of the examination by claiming'that he could not give the information with out having his recollection refreshed by an inspection of the books.

We think, therefore, that tlie order should be modified by adding thereto the following words : “ Such production of the books being only for the purpose of refreshing the recollection of the witness and aiding his memory in the oral examination; such books not being produced for the purpose of examination or inspection by the plaintiffs counsel.” As so modified, the order should be affirmed, without costs.

Patterson, O’Brien and McLaughlin, JJ., concurred. 1

Order modified as directed in opinion, and as modified -affirmed, without costs.