Ferguson v. Bien

This is an appeal from an order of the City Court granting an inspection of plaintiff’s books. There are several reasons why the order should not have been made. One reason is that the-defendants have been guilty of laches. The general rule is that an order for discovery will not be made after the cause has actually appeared on the day calendar. In the present case the cause had been once tried and sent back for a new trial. It was placed upon the day calendar for retrial upon a day selected and agreed upon by defendants, and had actual^ been called and marked “Ready” before the application for an order to show cause was made. These-laches are not satisfactorily excused, and of themselves would have justified the-denial of the motion. Mut. R. F. Assn. v. Patterson, 33 Misc. Rep. 572 , 68 N. Y. Supp. 885 . Nor does it appear that there is any necessity for the examination. It is most obviously an attempt at what islcnown as a “fishing excursion.” The defendant Bien in his petition asserts that upon the former trial plaintjff contended that part of the money deducted, which defendants claimed was for interest, was-credited on account for services rendered by plaintiff for defendant Nellis, and that plaintiff did not produce his books, and claimed that, the books showed no such entries. The petitioner then states as-the necessity for the examination of plaintiff’s books (and this is the only necessity stated), that he should discover “what services were rendered by plaintiff for defendant Nellis- upon which any such claim.

The order must be reversed, with $10 costs and disbursements, and and the motion denied, with $10 costs. All concur.