Cornish v. Wormser — 5 N.Y.S. 889

Majority

p. 889

Cornish et al. v. Wormser.

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

1. Discovert—To Frame Bill of Particulars.

Code Civil Proc. N. Y. § 804, provides that the general rules of practice must prescribe the cases in which discovery may be had in any cases authorized by the Code. Section 803 authorizes a discovery in reference to any books and papers relating to the merits of the action or of the defense. Gen. Rule Prac. 14 provides that a discovery may be had by either party in order to enable him to frame his pleadings, and that either party may be compelled to make discovery as provided by Code Civil Proc. c. 8, tit. 6, art. 4, (which includes section 803.) Held, that a discovery might be had to enable a party to frame a bill of particulars.

2. Same—Description of Books and Papers.

An order for a discovery will not be granted unless the books and papers as to which the discovery is sought are so described in the affidavit that they may be identified.

Appeal from special term, Sew York county.

Action by Louis M. Cornish and another against Maurice S. Wormser, on a check for $5,000, made by defendant, payable to plaintiffs’ order. The answer admits the check, but sets up various counter-claims, etc. Defendant appeals from an order denying a motion for a discovery to enable him to furnish a bill of particulars.

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

Henry Melville, for appellant. Dill, Chandler <& Seymour, (Frederick Seymour, of counsel,) for respondents.

We are of the opinion that the court in a proper case has the power to order a discovery or inspection of books and papers to enable a party to frame a bill of particulars. Ball v. Publishing Co., 48 Hun, 149 . It is true that rule 14 speaks of applications for discovery for the purpose of enabling a party to frame his complaint or answer, but it also provides that either party may be compelled to make discovery as provided by article 4, tit. 6, c. 8, Code Civil Proc. This rule is passed pursuant to section 804 of said Code, which provides that the general rules of practice must prescribe the cases in which discovery may be had in any case authorized by the Code. Section 803 authorizes such a discovery in any action in reference to any books and papers relating to the merits of the action or of the defense therein. Thus rule 14 contains no restriction, but the general authority exists to order such discovery at any stage of the action in furtherance of justice.

We think, however, the order appealed from was right, because there was no specification of the books and papers as to which discovery is sought, and nothing but surmises as to their contents. The affidavits and order should definitely describe the books and papers to be produced, so that the party proceeded against may know what to admit or deny, and also so that the court may know when books and papers are produced whether or not they are such as the order calls for. An order for discovery must be reasonably definite and explicit, and cannot be so vague that what books and papers are desired cannot be determined by the court upon a reading thereof. For these reasons the order appealed from must be affirmed, with $10 costs and disbursements, with leave to renew motion upon payment of these costs and disbursements.

All concur.