McInnes v. Gardiner — 57 N.Y.S. 356

Majority

p. 356

(27 Misc. Rep. 124.)

McINNES et al. v. GARDINER.

(Supreme Court, Special Term, New York County.

April 3, 1899.)

Headnote

Discovery—Inspection op Books.

In an action for goods sold, an application for the inspection of plaintiff’s books, based on an allegation in the answer, on information and belief, that plaintiff, contrary to agreement, sold goods to other persons at a lower price than that given to defendant, will be denied, where the object of the discovery appears to be solely to ascertain whether or not the allegation of the answer is true.

Action by Edward Mclnnes and others against George N. Gardiner. Motion by defendant for inspection of plaintiffs’ books.

Denied.

Taylor & Parker, for the motion.

Asa Bird Gardiner, opposed.

The application for discovery is based solely upon the allegation in the answer, upon information and belief, that plaintiffs’ intestate, contrary to. agreement, sold paints to other persons at a lower price than that given to the defendant; and discovery is sought merely because the books would show the sales to such other persons. Nothing is presented in support of the proposition that the sales thus made were in fact at a lower price, and it would certainly appear that the' object of the discovery is solely to obtain information as to whether or not the allegation of the answer is true; and, under these circumstances, the motion may not be granted. Dickie v. Austin, 4 Civ. Proc. R. 123. Moreover, it appears that the books are not in this country. The application for a commission is granted. Plaintiffs’ diligence and good faith seem apparent, and I find no reason for the imposition of terms.

Motion for discovery denied, with $10 costs. Motion for commission granted, without costs.