National Oleo Meter Co. v. Jackson — 11 N.Y. St. Rep. 268

Majority

p. 268

National Oleo Meter Company, Resp’t, v. Walter M. Jackson, Appl’t.

(New York Superior Court, General Term,

Filed May 2, 1887.)

Headnote

1. Inspection op papers, etc.—When permitted—Code Crv. Pro., § 806.

The plaintiff petitioned for an order for an inspection of certain -written agreements which it was advised and verily believed were in the possession or under the control of the defendant, and it was averred to he necessary before plaintiff could safely proceed to trial, etc. Defendant in his answer

p. 269

to said petition averred that the said agreements, if ever executed, were in duplicate, and that a dupl.cate original should be in the hands of a certain corporation outside the slate, an. i that the officers of said corporation could be examined by commission Held, that the order was properly granted; that the proof by affidavit was satisfactory and in compliance with Code Civil Procedure, § 806 The fact that a duplicate original should be in the hands of a corporation in another state should not absolve the defendant from producing a copy in his possession or certainly under his control.

3. Same—What material and relevant.

The action was brought to compel specific performance of a contract to assign certain patents. The defense was that the other party to the contract (plaintiff’s assignor) had failed to pay certain expenses. The plaintiff replied that by the agreements the defendants had received money on account of said assignor more than sufficient to pay said expenses, and which he could have legitimately applied to the payment thereof. Held that the agreements were relevant and material.

Appeal from an order of the special term granting plaintiff’s motion for an inspection of certain written agreements in the possession or under the control of the defendant.

Edmund Coffin, Jr., attorney, and George C. Holt, of counsel for resp’t; Isaac Angel, attorney, and William Stone, of counsel for app’lt

—This is an appeal from an order granting plaintiff’s motion for an inspection of certain written agreements, which plaintiff is advised and verily believes are in the possession of or under the control of the defendant, and are material and necessary to the plaintiff’s cause of action and defense against defendant’s counterclaim, upon the trial.

Plaintiff also avers that it. cannot safely proceed to trial without them, or a sworn copy of them. Defendant, in Ms answer to the plaintiff’s petition, avers that the agreements, examination of which the plaintiff desires, if ever executed, were in duplicate, and that a duplicate original should be in the hands of a corporation known as the “Rhode Island Company;” and that the officer of that company can be examined outside the state by commission. On these statements the defendant objected to the granting of the order, because:

First. The petitioner did not swear absolutely, but only on his belief, that the agreements were in the possession or under the control of the defendant. This objection is not well taken. The defendant does not deny that the agreements were under his control, and the court is jus tified in believing that he has it in his power to produce the agreements under the order. The plaintiff has given satisfactory proof by affidavit, in compliance with Code, section 806. The fact that a duplicate original should be in the hands of a corporation in Rhode Island should not absolve the defendant from producing the copy in his possession,

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or certainly under his control. The objection that the agreements are not material to-the issues to be tried in the action, and would not, if produced, contain evidence relevant or admissible, is equally without merit. The action is brought to compel specific performance of a contract, the existence of which is admitted by the defendant, that he would assign to a corporation called “ The Standard Hydro Carbon Machine Company,” all such patents as he should obtain for improvements in the manufacture and use of gas. The plaintiff company claims to have succeeded, by assignment, to all the rights of the “Standard, etc., Co.” The defense is that the “Standard, etc., Co.” had failed to pay the expenses incurred by the defendant in making experiments, etc.

To this plaintiff replies that, by agreements in writing between the defendant and the said “Rhode Island Company” and others, and the defendant, 2,800 shares of stock in the “Standard, etc., Co. ” were placed in the hands of the defendant for the purpose of selling the same at a fixed price, and holding the proceeds for the benefit of the “Standard, etc., Co.” That he did sell these shares, and that the sale theref ought to have produced $13,000, all of which sum he should have held in trust for the “Standard, etc., Co.,” of which he was, at the time, a trustee and the president; and that out of these moneys in Ms hands belonging to the company, he should have defrayed the expenses of Ms experiments and taking out patents.

The purport and effect of these agreements, entered into-with defendant for the benefit of the “Standard, etc., Co.,” would be material and relevant to the issue whether or no-the “Standard, etc., Co.” had failed to pay defendant’s expenses, or whether he had not moneys belonging to that company placed in Ms hands in trust, and which he "could have legitimately applied to the payment of the expenses, for wMch he avers he received no payment from the company.

The plaintiff’s petition seems to have been presented in good faith, and the order granting its prayer should be sustained.

The order is affirmed, with ten dollars costs.

Sedgwick, Ch. J., and Freedman, J., concur.