tiffs safely to proceed to trial. That the information so acquired and in the possession of the defendant city’s officers cannot be obtained from any other source. The purpose of the examination, as stated in said affidavit, is “to ascertain from defendant’s officers who made the observations and gathered the data as to the floods mentioned above, the extent of their observation and knowledge, and whether or not the profile and area maps above mentioned are correct, and to enable the plaintiff to corroborate said witnesses by other witnesses and verify the information obtained and records made by said Morse and said Norton. That the engineers in employ of the plaintiffs may study the data and the facts and evidence given by said defendant, and its source, and show when and how the defendant diverts the waters of said river and said creeks and discharges them upon the plaintiffs’ land, and how long they remained there. It is necessary to get such evidence before the trial and marshal said facts, so that expert witnesses in behalf of the plaintiffs may study the data and evidence given by said defendant and its officers, and be able in that manner to show the extent that each defendant contributes to the floods that create the nuisance as in the complaint mentioned. That such facts are solely within the knowledge of the defendant, not within the knowledge of the plaintiffs, and that this is the only source from which such evidence can be obtained, because it is the only accurate record kept by any person, and that the plaintiffs are unable to get it in any other way, except upon and in connection with the examination of the defendant and its officers. That the production of said profile and area maps and the examination of the defendant and its officers on the trial will not give expert witnesses time or opportunity to examine the same and by their evidence aid the court in passing upon the facts.” There was also presented to the justice the affidavit of the plaintiffs’ attorney, which states in substance that he requested the deputy commissioner engineer to furnish to him copies of said maps, and that he refused so to do.
Argued before McLENNAN, P. T., and SPRING, WILLIAMS, NASH, and KRUSE, JJ.Samuel F. Moran, for appellant.
Edward C. Randall, for respondents.
We think the moving papers wholly fail to show any proper ground upon which the order in question can be based. The substance of the allegations is that the defendant, the city of Buffalo, through its officers, has caused certain investigations to be made relating to plaintiffs’ alleged cause of action against the defendant, and that some of the information thus obtained has been put in the form of maps, that some is in the shape of records, and some in the minds of such officers. And the plaintiffs allege that it is desirable, indeed essential, that all such information should be given to them, so that, among other things, their experts may study and analyze the same and thus be sure that it is correct.
There is no authority for granting such an examination for such a purpose. We think it is not the law that a defendant, who, for the purpose of defending an action threatened to be brought against him, investigates and as a result learns certain facts relating to such cause of action, may be compelled to give such facts and the result of such investigation to his adversary. If the maps, records, etc., are public records, the plaintiffs have the right to examine and inspect them at all reasonable times; but the custodian or officer making them may not be examined to the end that it may be ascertained whether or not the officer making them made them correctly. So far as appears, the plain