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Memphis Trotting Ass'n v. Smathers

99 N.Y.S. 1057 Court N.Y. App. Div. Decision date 1906-07-12 English

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p. 1057
MEMPHIS TROTTING ASS’N v. SMATHERS.
(Supreme Court, Appellate Division, First Department.
July 12, 1906.)

Headnote

Discovery—Inspection of Instruments.
Where, on a motion to permit an inspection of an affidavit, it appeared that the original had been destroyed, and there was no motion for the inspection of a copy, nor proof of the existence of a copy, the motion was properly denied.
Appeal from Special Term, New York County.
Action by the Memphis Trotting Association against Elmer E. Smathers. From an order denying a motion for leave to inspect an affidavit, defendant appeals.
Affirmed.
Argued before O’BRIEN, P. J., and McEAUGHRIN, RAUGHLIN, CLARKE, and HOUGHTON, JJ.
Jno. J. Adams, for appellant.
Parker, Hatch & Sheehan, for respondent.

It would appear that the original affidavit has been destroyed, and solely because of the insufficiency of the papers in showing that a copy is still in existence, and the fact that no motion was made for the inspection of such copy. We think that the proper disposition will be to affirm the order, with $10 costs and disbursements, but with leave to move for the inspection of the copy if so advised.