Mierisch v. Mt. Morris Bank — 65 N.Y.S. 565

Majority

p. 565

MIERISCH v. MT. MORRIS BANK.

(City Court of New York, General Term.

June 20, 1900.)

Headnote

Discovert—«Forged Checks and Orders.

Where, in an action on checks and orders which had been in plaintiff’s possession for a long time, an inspection thereof by defendant was necessary to enable him to make the defense of forgery, the denial of an application for an order compelling plaintiff to grant such inspection was erroneous.

Appeal from special term.

Action by Charles Mierisch against the Mt. Morris Bank. From an order denying an application by defendant for discovery and inspection of checks and orders sued on, defendant appeals.

Reversed.

Argued before MCCARTHY and O’DWYER, JJ.

James J. Allen, for appellant.

Henry W. Heifer, for respondent.

This is an appeal from an order, dated January 30, 1900, denying an application for a discovery and inspection of certain checks and orders, described in the petition herein. The amended complaint, and the answer to said amended complaint, read in support of the motion, show clearly what the issues were. The order for a discovery and inspection, under the circumstances presented, was clearly within the sound discretion of the court, and was a means, among other things, of ascertaining the substance of this action, to wit, whether the four checks alluded to were genuine or not. We think the court should have permitted the discovery and inspection, as applied for by the defendant. The examination of the four checks specially in dispute would and must materially aid in the discovery of tire points involved in this action. They were, and have been for a long time, in possession of the plaintiff, and it must be

p. 566

.upon an examination and inspection of these papers before trial that the defendant could at all successfully defend this action. We think the application was fair and reasonable. There is .no doubt, from the papers, that it was made in good faith, and ought to be granted.

Order appealed from is hereby reversed, with costs, and an order for the discovery and' inspection herein is hereby granted as to the alleged forged checks, and all others admitted to be in the plaintiff’s possession, ánd the trial of the action stayed pending such discovery and inspection.

O’DWYER; J., concurs.