Majority
p. 817Kings County Bank of Brooklyn v. Dougherty. (Supreme Court, General Term, First Department. November 18, 1892.) Argued before O’Brien and Barrett, JJ.
Headnote
Discovert—To Prepare Defense—Affidavit.In an action against the indorser of a note defendant asked for a discovery and inspection of plaintiff’s books, stating in his affidavit that he had received no value for the note, and that defendant had paid no value therefor; that plaintiff’s books would show these facts; and that defendant could not prove them without such discovery and inspection. These statements were supported by the affidavit of an expert accountant, who had previously made a partial inspection of plaintiff’s books. Held, that sufficient cause was shown for a discovery, and that a statement of other facts upon information and belief, in defendant’s petition, was not fatal thereto.
Appeal from special term, New York county.
Suit on a note by the Kings County Bank of Brooklyn against Edward J. Dougherty. Defendant applied for an order for a discovery, inspection of plaintiff’s books, and, from an order denying such inspection, he appeals. Reversed.
Defendant’s petition for discovery and inspection of plaintiff’s books stated that he had received no value for the note sued on, and that plaintiff had paid no value therefor; that plaintiff’s books would show these facts; that defendant had no other means of proving them; and that the evidence of such facts was necessary to a defense of the action, and that the examination asked was intended for use on the trial of the action.
Hildreth & Barker, (John J. Adams, of counsel,) for appellant. Goodrich, Deady & Goodrich, (Avery F. Cushman, of counsel,) for respondent.
Upon examining the petition, supplemented by the affidavit of the attorney at law and expert accountant, we think a proper case was made out for the granting of the order for an inspection of the plaintiff’s books. The objection that the petition is in part based upon information and belief is not fatal, for the reason that the essential averments are stated positively, and receive support from the accountant, who, in the examination already made in action No. 1, states the condition of the account of Giulia Brandéis with the bank, and the necessity for requiring, in order that the defendant .might obtain the information requisite for his defense, a further
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examination than that accorded by the former order of discovery, which limited the period over which the examination should extend. We think, therefore, that the order appealed from should be reversed, with $10 costs and disbursements, and upon the settlement of the order counsel will be afforded an opportunity of presenting their views as to the extent of the examination.