Lovell v. Clarke — 7 How. Pr. 158

Majority

p. 158

SUPREME COURT.

Lovell agt. Clarke.

Headnote

An application by petition, may be so framed as to embrace a discovery under the Code, and the production of papers, under the rules.

A defendant is entitled to an inspection and copy of an assignment of plaintiff’s bond, declared on and made under an order of court, and also to a copy of the order to enable him to prepare for trial.

Dutchess Special Term, October 1852.

The action is founded upon a bond which the complaint alleges to have been assigned to the plaintiff by “ The New York Life Insurance Trust Company,” by virtue of an order of the Supreme Court made on the second day of November 1850. The defendant now applies, by petition, for a discovery and production of the assignment and order fo enable him to prepare for trial.

H. Hogeboom, for Defendant.

J. Lovell, for Plaintiff.

The application, although in the form of a petition, and conforming substantially to the rules, in fact seeks the discovery given by the Code. But I see no objection to the practice of so framing the application as to embrace both, which seems to have been done in the present case.

As to the assignment, there can be no doubt of the defendant’s right to an inspection and copy. The suggestion made by plaint

p. 159

iff’s counsel that he may rely on an assigment by mere delivery, is of but little force, in the absence'of any affidavit; and especially when the penalty for not producing it is that the court “ may exclude the papers from being given in evidence.”

But it is contended that the plaintiff can not be required to discover the order, “ because it is a record of the court and open to all.” There would be more force in this argument, if all the orders were entered in one clerk’s office; but as the orders are scattered over the whole state, I think it quite as reasonable to require the plaintiff to exhibit his copy, as to send the defendant’s attorney to the various clerks’ offices in search of it.

The plaintiff must, therefore, within three days after service of a copy of the order, give to the defendant an inspection and copy, or permission to take a copy of the order and assignment.