Saal v. Katz — 81 Misc. 239

Majority

p. 239

Nathan Saal, Sam Saal and Morris Saal, Copartners Doing Business as Saal Bros., Respondents, v. Bernard Katz, Appellant.

(Supreme Court, Appellate Term, First Department,

June, 1913.)

Headnote

Discovery and inspection —■ offer of books or documents in evidence — action for goods sold and delivered — sales.

It is well settled in this state that a party is not bound to offer a book or document in evidence simply because it was produced by the opposite party on the trial, at his request or under his subpoena, and was inspected by him.

Where the plaintiff’s contention in an action for goods sold and delivered is that they were sold to defendant and upon his credit though delivered to third persons by his order, but defendant claims that he was merely a broker in the transaction and that the sales were made to and upon the credit of third persons and that he was to receive a commission, he as a condition to the inspection of plaintiff’s books of account produced at the trial is not bound to first offer them in evidence.

p. 240

Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiffs upon the verdict of a jury.

Frank M. Franklin, for appellant.

Nathan D. Leiman (Manuel Neufeld, of counsel), for respondents.

The action was for goods sold and delivered, the plaintiffs contending that the goods were sold to the defendant and upon his credit, although by his order delivered to third persons; defendant on the other hand claiming that he was a broker in the transaction, and that the sales were made to and upon the credit of the third persons and that the defendant was to receive a commission upon the sales.

The defendant subpoenaed the plaintiffs’ books. When they were produced at the trial plaintiffs refused to allow defendant’s attorney to inspect the accounts relating to the transaction in suit unless the books were first placed in evidence by the defendant. This objection was sustained and exception duly taken. It is well settled in this state that a party is not bound to offer a book or document in evidence simply because it was produced by the opposite party on the trial, at his request or under his subpoena, and was inspected by him. Carradine v. Hotchkiss, 120 N. Y. 608 ; Smith v. Reintz, 131 id. 169, 175.

The crucial question in this case was: Upon whose credit were the goods sold? Plaintiffs’ books of account were admissible in evidence against them as admissions, and would have had great probative value, should it appear that at the time of the sale and delivery the charge was made against the third persons and not against the defendant. To impose as a con

p. 241

dition to the inspection of the books that they must first be offered in evidence by the defendant deprived him of a right he had, and may have rendered unavailable most important evidence.

The error was therefore prejudicial and the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Seabury and Bijur, JJ., concur.

Judgment reversed and' new trial ordered, with costs to appellant to abide event.

Cases cited

Carradine v. Hotchkiss 120 N. Y. 608 N.Y. 1890-06-27 p. 240