Dyett v. Seymour — 2 N.Y.S. 842

Majority

p. 842

Dyett v. Seymour et al.

(Supreme Court, General Term, First Department.

November 23, 1888.)

Headnote

Practice in Civil Cases—Production of Books—Examination before Trial.

An order for the production of defendants’ books for inspection should not be granted concurrently with an order for defendants’ examination before trial; but, if it should subsequently appear that plaintiS cannot procure by the examination, the information he is entitled to, he should have leave to renew his application for the production of the books.

Appeal from special term, Hew York county; George 0. Barrett, Justice.

Defendants appeal from an order for the production of their books for inspection. For a further statement,-and for the opinion on appeal from an order for defendants’ examination before trial, see ante, 841.

Argued before Van Brunt, P. J., and Daniels and Bartlett, JJ.

Joseph H. Choate, for appellants. A. R. Dyett, for respondent.

In another appeal, founded upon the same facts as are disclosed by these papers at the present term, we have affirmed an order directing the examination of the defendants herein. Ante, 841. This is all the relief that the plaintiff, in our judgment, in the present stage of this action, is entitled to. Upon their examination before trial, the defendants can be compelled to produce their books as upon the trial, and can be compelled to refer to them for the purpose of answering proper inquiries as upon the trial, and thus the plaintiff can procure all the information to which he is entitled. If it should subsequently appear that the information which the plaintiff is entitled to receive from his agents cannot be procured in this way, and that an inspection of the books is necessary and requisite, then the plaintiff should have leave to renew his application for a production of the books. Order reversed, with $10 costs and disbursements to the appellant, to abide the final event; and with leave to the plaintiff, after the examination of the defend

p. 843

ant, or in connection therewith, upon proper cause shown, to apply to the court for an order directing the production of these books for inspection.

Daniels and Bartlett, JJ„ concur.