Christman v. Keck — 122 N.Y.S. 676

Majority

p. 676

CHRISTMAN et al. v. KECK.

(Supreme Court, Appellate Division, Third Department.

May 4, 1910.)

Headnote

Disco vest (§ 86^[1] )—Inspection of Papers—Motion—Reason—Sufficiency.

On motion by defendant for an inspection of certain papers in plaintiff’s-■ possession, where the moving papers showed that the purpose of the inspection was solely to refresh defendant’s recollection, and plaintiff offered to produce the papers at the trial, the reason for granting the motion was insufficient.

[Ed. Note.—Eor other cases, see Discovery, Cent. Dig. § 110; Dec. Dig. '§ 86.^[1] ]

Sewell and Houghton, JJ., dissenting.

Appeal from Special Term, Fulton County.

Action by Jacob I. Christman and others, as executors, etc., against Phillip Keck. From an order requiring plaintiffs to give the defendant an inspection of certain papers, plaintiffs appeal.

Reversed, and motion denied.

Argued before SMITH, P. J., and KELLOGG, COCHRANE, SEWELL, and HOUGHTON, JJ.

Alfred Dudley Dennison, for appellants.

M. H. Nellis, for respondent.

The trial of this action pending before a referee was halted to permit the defendant to procure an inspection of certain written statements delivered by him to the plaintiffs’ testator. The action is on a promissory note given by defendant. He counterclaims for legal services rendered by him as an attorney and counselor at law extending through a period of many years, and the statements in question contain matters relating to the business transactions between him and his former client. Clearly those papers are evidence in behalf of either party to this action. The plaintiffs so regarded them, and offered to produce them before the referee on the trial. We think the order for the inspection was improvidently granted and without sufficient reasons appearing therefor. The only reasons given by defendant in the moving papers are as follows:

“Your petitioner does not recall the details of the services which he rendered to plaintiffs’ testator during all the years since 1883, and is confident -that these statements so rendered by him in confidence to said testator would refresh his recollection in many particulars, so that he might testify to the services thus rendered and to many details concerning which he would be competent to testify, because they would not concern any personal transaction had between your petitioner and said testator, and an inspection and copy of such statement and statements is necessary to enable your petitioner to prepare for the trial and defense of this action; that without an inspection of the said statement, and of each and every statement which your petitioner has rendered to said testator in his lifetime, your petitioner will be unable to maintain his defense and counterclaim as efficiently herein as if he were permitted to refresh his recollection from the said statements and papers so rendered and delivered by him to said testator, which are now under the control and in the possession of these plaintiffs.”

Manifestly whatever benefit, as thus stated by defendant, he could derive from an inspection of the documents in question, would be

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available to him as well after as before such documents are admitted in evidence. The declared purpose of the inspection is solely to refresh the defendant’s recollection. The papers can accomplish that result with undiminished efficiency after they become evidence. As previously pointed out, the trial of this action has already been commenced before a referee. The reasons which usually prompt a court to direct a discovery or inspection of papers before trial do not here apply. No time or expense is to be saved, and there is no question of surprise involved. The defendant’s rights can be fully safeguarded by the referee.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur, except SEWELL and HOUGHTON, JJ., who dissent.