Fox v. Brega — 5 N.Y.S. 908

Majority

p. 908

Fox v. Brega et al.

(Supreme Court, General Term, First Department.

May 24, 1889.)

Headnote

1. Practice in Civil Cases—Production of Books.

It is no objection to a motion to require a defendant to produce for plaintiff’s inspection account-books, which he has admitted his firm had, that his co-partner, who is also his co-defendant, has not been served with process. .

3. Same—Sufficiency of Affidavit.

Nor is an affidavit by defendant’s attorney that the books are not in defendant’s custody any defense to the motion, when the affidavit is based on information and belief, and does not assign any good reason why defendant does not swear to the facts himself.

3. Same—Inspection of Books.

Defendant need not produce the books at the office of plaintiff’s attorney, but may either permit them to be inspected at the office of his own attorney, or furnish duly-verified copies of the entries in question.

Appeal from special term, New York county.

Action by Watson A. Fox against Charles W. Brega and Edmund W, Syer. Plaintiff appeals from an order denying his motion that defendant Biega be required to produce and discover to plaintiff certain books and papers.

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

T. Henry Dewey, for appellant. George S. Hastings, for respondents.

This action arises out of the alleged misconduct of the defendants, as agents of the plaintiff, in managing business which they did for him under contracts made by them in the plaintiff’s behalf, for the purchase and sale of grain and provisions. The alleged misconduct consisted in confusing these contracts with contracts made with other parties, and in settling and canceling them without the plaintiff’s knowledge or consent, so that the plaintiff was utterly deprived of his interest in the contracts in his behalf. The plaintiff states in his petition that he has no possible way of ascertaining the names of the parties with whom such contracts were made, or how they were performed, settled, or disposed of, except by an inspection of the contracts themselves, and of the books of the defendants. He alleges that the defendants, constituting the firm of O. W. Brega & Co., kept books which contain the desired information; and as evidence of their existence he refers to an admission made by the defendant Charles W. Brega in another litigation, to the effect “that his firm had in the city of Chicago a certain book or books, in which appeared the names of the parties with whom the said contracts for the purchase and sale of grain and provisions were made, and how said contracts were performed, settled, or disposed of.” The plaintiff has never been allowed to see the contracts or books, and desires an inspection and discovery of the same in' order to frame his complaint.

No sufficient reason for denying the application is furnished by anything stated in the affidavit of the attorney for the defendant Charles W. Brega, which was read in opposition to the motion. The defendant Brega has heretofore admitted that his firm had the books which the plaintiff desires to see, and the court has jurisdiction to order him to produce them for inspection, notwithstanding the fact that his partner, who is the other defendant in the suit, has not yet been served herein. It is true the attorney for the defendant Brega swears, on information and belief, that his client has .now retired

p. 909

from the firm, and that the defendant Edmund W. Syer, as the successor of the firm, has possession of all the books of C. W. Brega & Co., none of which are in the possession of Mr. Brega, or have been in his custody since the commencement of the present action. To be of any efficacy, however, in opposition to a motion for discovery and inspection, a denial that the papers are in the possession or under the control of a party must be made by the party himself. An affidavit of his attorney, based on information and belief, without disclosing the sources of such information, and without assigning any good ' reason why the party does not swear to the facts himself, is utterly insufficient. The application was denied upon the authority of Douglas v. Delano, 20 Wkly. Dig. 85 . In that case, however, the denial that the desired receipts were in the possession of the defendant appears to have been made by the defendant himself, and not merely by his attorney; and, furthermore, the decision was based, not alone on the ground that the defendant did not have the papers, but also on the ground that the desired papers were not necessary to the plaintiff to enable hi in to make out his cause of action. The identity of the books which the plaintiff wishes to inspect is clear enough. They are the books which Mr. Brega stated that his firm kept, containing entries in reference to the contracts made in the plaintiff’s behalf. He should not be required to produce them at the office of the plaintiff’s attorney, but should permit them to be inspected at the office of his own attorney, unless he is willing to furnish duly-verified copies of- the entries in question, in which event an inspection would be unnecessary. The order appealed from should be reversed, with' costs and disbursements, and the motion should be granted to the extent which has been indicated, so far as it relates to the defendant Brega. All concur.