Gould v. McCarty — 11 N.Y. 575

Majority

p. 567

Gould against McCarty.

Headnote

The supreme court is authorized by the revised statutes (21?. S. 199) to compel a defendant in a suit pending therein to make discovery of books, papers and documents in his possession or power relating to the merits thereof, and which are necessary to the plaintiff to enable him to prepare for the trial.

The 388th section of the code is not a substitute for the provisions of the revised statutes, but is auxiliary thereto.

The superior court of the city of New-York has the same powers to compel discovery by the parties to a suit pending therein, which are conferred by the revised statutes upon the supreme court; (Laws of 1841, p. 22;) and where the defendant, in an action pending in that court, refused to comply with an order

p. 568

directing him to make discovery, to enable the plaintiff to prepare for trial; Held, that the court was authorized to strike out his answer, and render judgment as though no answer to the complaint had been made.

The action was brought in the superior court of the city of New-York, to recover damages for the non-delivery of stock in the New-York and Erie Railroad Company, contracted Sept. 27, 1851, by the defendant, to be sold and delivered to the plaintiff. The answer of the defendant alleged that, at the time of the making of the contract, the defendant was not in the actual possession of the certificates or other evidence of shares of the capital stock contracted to be sold, nor was he entitled in his own right, or authorized by any person entitled to sell or transfer the stock, and that the contract with the plaintiff was a stock-jobbing transaction which the plaintiff knew, and contrary to the statute and void. The plaintiff by his reply took issue upon these allegations contained in the answer. After issue was joined, the plaintiff, on notice to the defendant’s attorneys, presented to the superior court at special term a petition, which stated that the defendant had in his possession or under his control certain books, papers and documents relating to the merits of the action, containing entries, writing and memoranda of purchases, sales, loans or hypothecations of stock of the New-York and Erie Railroad Company, made by the defendant for himself or others, and prayed that a discovery of such books, papers and documents might be made under the direction of the court. The petition was verified by the affidavit of the plaintiff, in which the plaintiff also stated that the books, papers and documents in the petition mentioned were not in his possession or under his control, and that, as he was advised by his counsel and believed, the discovery of the same as prayed in the petition was necessary to enable him to prepare for trial. Counsel for the defendant opposed the application, and read in opposition thereto an affidavit of the defendant, in which he denied that he had in his possession or under his control any books, papers or documents mentioned in the petition, or containing any of the entries, writing or memoranda therein mentioned,11 except

p. 569

the private hook kept by the defendant for his own convenience, in which he made short entries or memoranda of the purchases and sales of stock, or contracts therefor, and his ordinary check book kept in the usual manner.” The court made an order, requiring the defendant to deliver to the plaintiff’s attorney sworn copies of all entries in the defendant’s books, and papers containing evidence relating to the merits of the action, within twenty days,-and staying all proceedings in the cause. From this order the defendant appealed to the general term. On' the argument^ of the appeal, the court modified the order made at special term by ordering that the defendant, within twenty days after the service of the modified order, deliver sworn copies of all entries and memoranda in his check book or private memorandum book mentioned in the affidavit of the defendant, read in opposition to the application at special term, made or dated Sept. 27,1851, or within twenty days before nr after that date, showing or tending to show purchases on sales of the stock in question, or the ownership or control of any such stock, either by the defendant in his own right, or by him for or on behalf of any other person, or authority in the defendant to sell or deliver any of the stock.

The defendant, in pursuance of this order, delivered to the plaintiff what purported to be copies of memoranda and entries as to the sale and purchase of the stock during the time mentioned in the order, accompanied by his affidavit, in which he stated that the same were full and true copies of the entries and memoranda, except that in a few instances the initials of the name of the individual, on whose account the stock in the memorandum referred to was purchased or sold, were omitted; and that this was done because such purchases and sales were made for the individuals whose initials were omitted, in strict confidence that their names should never be disclosed, and that a dis- ■ closure of their names would be injurious to them in their business, and could in no way be material to the issue, or beneficial to the plaintiff in the case. At a subsequent special term of the court, on the application of the plaintiff, an order was made that the defendant, within a time named, deliver to the plaintiff’s

p. 570

attorneys copies of the entries and memoranda which were omitted in the discovery before made ; and that in default of so doing he show cause at a special term of the court to be held in November, 1852, why his answer should not be stricken out, or the plaintiff have such other relief as to the court should seem- meet. The defendant did not comply with the order, and at the November special term, after hearing counsel for the respective parties, the court made an order striking out the answer of the defendant, and permitting the plaintiff to take judgment as though no answer to the complaint had been served. This order directed a reference to ascertain and report the amount due the plaintiff.

The referee reported the amount due the plaintiff to be $2883.94, for which sum and costs judgment was entered. The defendant appealed from the judgment to the general term of the superior court, at which it was affirmed; he then appealed to this court from the judgment of affirmance.

E. S. Young, for the appellant.

I. If the application in this case could be considered as a proceeding under the 388th sec. of the code, then the order of November, and the judgment entered thereon, are clearly erroneous, the court having no authority under that section to strike out an answer or defense of the party. (See Staunton v. Delaware Mutual Ins. Co., 2 Sand. 663.)

II. But this was an attempt by the plaintiff, by proceedings under the revised statutes, to obtain a discovery of papers, &c., containing “ evidence ” to enable him to prepare for the trial. And the original order for discovery, and the order of the general term affirming the same, are erroneous, and ought not to have been made on the application made to the court ; for, 1st. The jurisdiction of the court to order discovery under the revised statutes, extends only to the cases provided by the general rules of the supreme court. Those rules do not provide for discovery in such case. (2 R. S. 3d ed. 262, § 31; Supreme Court Rule 8; see also 8 How. Pr. Rep. 91 .) 2d. But if this were a proper case for the proceeding under the revised statutes, then the court

p. 571

must be governed therein by the principles and practice of the court of chancery in compelling discovery. By the practice of the court of chancery and under the revised statutes, (1.) A necessity for the discovery must be shown. (2 Story’s Eq. Jur. § 1497 ; Lane v. Stebbins, 9 Paige, 622; Nieury v. O’Hara, 1 Barb. S. C. Rep. 484 ; Moore v. McIntosh, 18 Wend. 529 ; Pepper v. Chambers, 7 Eng. Law and Eq. Rep. 589; See 6 How. Pr. R. 398; 2 Sand. S. C. Rep. 663.) On this application such necessity was not shown. (2.) The papers, &c., Sought to be discovered, must be such as the party making the application has some interest in. ( Watson v. Renwick, 4 John. Ch. 381, 385; Burton v. Neville, 2 Cox’s Cas. 242.) (3.) The party applying must, by the practice of the court of chancery, set forth the particulars of which discovery was sought. A mere fishing application, to ascertain whether the party has books or papers containing evidence, would not be entertained. (Lane v. Stebbins, 9 Paige, 622 ; Hoyt v. Am. Ex. Bank, 8 How. Pr. R. 92; 2 Phil. Ev. 194, 3d ed.)

Charles Tracy, for the respondent.

I. The right to a discovery, by interlocutory proceedings in an action at law, is secured by statutes and by general rules of practice. The discovery may be had in preparation for pleading, or after issue joined in preparation for trial. It is designed to accomplish all the purposes of a bill of discovery, except the procuring of the personal testimony of the party himself, and is liberally allowed by the courts. (2 R. S. 199, § 21-27 ; S. Laws 1841, p. 22; Code of Proc. § 388; Supreme Court Rules of 1847, rules 27-30 ; 1849, rules 8-11; 1852, rules 8-11; 1854, rules 8-11; Follett v. Weed, 3 Howard’s Pr. R. 303; Stanton v. Delaware Mut. Ins. Co., 2 Sandf. S. C. R. 662 ; Moore v. Pentz, id. 664 ; Powers v. Elmendorf, 4 How. 60 ; Pollock on Power of Courts, 14, 22, 46, [77 Law Lib., O. S.]; Bluck v. Gompert, 6 Eng. Law and Eq. R. 524; Scott v. Walker, 22 id. 134 ; 1 Monell’s Pr. 515.)

II. The order of the court striking out the defendant’s

p. 572

answer, for Ms refusal to make the discovery required, was the correct practice in the case. 1. This very remedy is given by the statute. (2 R. S. 200, § 26.) 2. It is also within the authority given by the code of procedure. (Code, § 388.) 3. The positive refusal of the defendant to make the required discovery ■ was sufficient evidence that his answer was a sham defense, and authorized the striking of it out on that ground. (Code, § 152.) 4. The course taken by the court below is well sustained upon the inherent powers of a court to exercise an equitable jurisdiction over its suitors. (People v. Oneida Com. Pleas, 18 Wend. 652 ; Swift v. Collins, 1 Denio, 659 ; 1 Graham’s Prac. 3d ed. 671-675; Lawrence v. Ocean Ins. Co., 11 John. 245 ; Wallis v. Murray, 4 Cowen, 399.)

III. The several orders of the court below, requiring the defendant to make discovery, are not proper matter of review on this appeal. 1. They were not such intermediate orders as may be reviewed on appeal in this court. (Code, § 11.) 2. They were an exercise of the discretionary,power of the court in matters of mere practice, and in its summary control over the conduct of suitors. (Fort v. Bard, 1 Comst. 43; Wakeman v. Price, 3 id. 334 .)

The revised statutes declare “ that the supreme court shall have power in such cases as shall be deemed proper, to compel any party to a suit pending therein, to produce and discover books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defense therein.” (2 R. S. 199, § 21.) The twenty-sixth section provides for the case of a party neglecting or refusing to obey an order for such discovery, and among other things, authorizes the court to strike out any plea or notice that may be given. The first section of the act of 1841, “ to enlarge the powers of certain courts of record,” (Laws of 1841, § 22,) declares that the superior court shall possess and exercise in all cases pending before it, the same powers granted to the supreme court by the revised statutes, to compel the discovery and the production of books,

p. 573

papers and documents, in cases pending before that court.” By the twenty-third section of the revised statutes, “ to entitle a party to any such discovery, he shall present a petition, verified by oath, upon which an order may be granted by the court for such discovery, or. that the other party show cause why the discovery should not be granted.” In the case before us, the plaintiff presented his petition to the superior court, by which an order was granted for the discovery sought, which was subsequently modified at the general term, and made peremptory upon the defendant; and upon his neglect to comply with its provisions, an order was made that he show cause why his answer should not be stricken out, which was afterwards made absolute, after hearing the defendant in opposition.

' It will be perceived that the proceedings upon the part of the plaintiff were in exact conformity to the requirements of the 23d section above quoted, and that the preliminary order of the court to show cause, and the final order striking out the answer of the defendant, were in like manner expressly authorized by the 23d and 26th sections of the same statute. There is, therefore, no objection to the mode in which the discovery was sought or the relief was granted, if the superior court had jurisdiction to act at all in the premises. It is claimed that the 22d section of the act requires, “ that the supreme court shall, by general rules, prescribe the cases in which such discovery may be compelled.” This is true. But the omission to frame rules does not annul the inherent power of the court to compel a discovery, or the power granted by the previous section ; but the general rules were designed to regulate its exercise. (11 John. R. 245 ; 9 Wend. 458 .) Jurisdiction does not depend upon the rule, but the rule is a consequence of the jurisdiction. By the act of 1841, (supra,) the superior court “ possess and may exercise” all the powers granted to the supreme court. The authority thus granted is not suspended until rules are established by the supreme court, but may be exercised in all cases where the mode of proceeding is prescribed by statute. Such is the case before us. The* 388th section of the code is not a substitute for the provi

p. 574

sions of the revised statutes, but auxiliary to them. By the previous statute, the court was restricted to the remedies there provided, where a discovery was refused by a party, against whom an order for that purpose had been granted. But, by the code, power is given to exclude the document from being' given in evidence, or to punish the party refusing, or both. {Code, § 388.)

There is no error in the final judgment of the superior court, or in the intermediate order which led to it. It must therefore be affirmed.

Ruggles, Parker, Edwards, Allen and Selden, Js., concurred.

Denio and Johnson, Js., dissented.

Judgment affirmed.

Cases cited

Townsend v. Lawrence 9 Wend. 458 N.Y. Sup. Ct. p. 573