Cornish v. Wormser — 24 N.Y. St. Rep. 666

Majority

p. 666

Louis M. Cornish et al., Resp’ts, v. Maurice Wormser, App’lt.

(Supreme Court, General Term, First Department,

Filed May 24, 1889.)

Headnote

1. Discovert—Order for—May be granted to enable party to FRAME BILL OF PARTICULARS—CODE OlV. PRO., § 803.

The court, in a proper case, has the power to order a discovery or inspection of books and papers to enable a party to frame a bill of particulars. Ball v. Evening Post Publishing Co., 5 N. Y. St. R., 2á9, followed.

2. Same—Affidavits And order must definitely describe books and papers.

In discovery proceedings the affidavits and order should definitely describe the books and papers to be produced, and the order for discovery must be so explicit that the court upon reading the order, may determine what books and papers are desired.

p. 667

Appeal from order denying defendants motion for discovery.

Henry Melville, for app’lt; Frederick Seymour, for resp’ts.

We are of the opinion that the court in a proper case has the power to order a discovery or inspection of books and papers to enable a party to frame a bill of particulars. Ball v. Evening Post Publishing Co., 48 Hun, 149 ; 5 N. Y. State Rep., 229.

It is true that rule 14 speaks of applications for discovery for the purpose of enabling a party to frame his complaint or answer; but it also provides that either party may be compelled to make discovery as provided by article 4, title 6, chapter 8 of the Code of Civil Procedure. This rule is passed pursuant to section 804 of said Code, which provides that the general rules of practice must prescribe the cases in which discovery may be had in any case authorized by the Code.

Section 803 authorizes such a discovery in any action in reference to any books and papers relating to the merits of the action or of the defense therein. Thus rule 14 contains no restriction, but the general authority exists to order such discovery at any stage of the action in furtherance of justice.

We think, however, the order appealed from was right, because there was no specification of the books and papers as to which discovery is sought, and nothing but surmises as to their contents. The affidavits and order should definitely describe the books and papers to be produced, so that the party proceeded against may know what to admit or deny, and also so that the court may know when books and papers are produced, whether or not they are such as the order calls for. An order for discovery must be reasonably definite and explicit, and cannot be so vague that what books and papers are desired cannot be determined by the court upon a reading thereof.

Por these reasons, the order appealed from must be affirmed, with ten dollars costs and disbursements, with leave to renew motion upon payment of these costs and disbursements.

Daniels and Brady, JJ., concur.