Smith v. Seattle, Lake Shore & Eastern R. R. — 41 N.Y. St. Rep. 672

Majority

p. 672

Charles Smith et al., Resp’ts, v. The Seattle, Lake Shore & Eastern R. R. Co., App’lt.

(Supreme Court, General Term, First Department,

Filed November 30, 1891.)

Headnote

Discovery—When ordered.

In an action for services in procuring the making of a contract for the building of defendant’s road, where it is alleged that such contract was executed in duplicate, one of which is in defendant’s possession, and the plaintiff has no other means of proving the execution of the contract, it is proper to grant an order for the discovery of the duplicate in defendant’s possession.

Appeal from order directing a discovery.

John V. Bouvier, Jr., for app’lt; Gilbert D. Lamb, for resp’ts.

The complaint alleges that a contract was made between the plaintiffs and the defendant whereby it was agreed that if the plaintiffs succeeded within a reasonable time in securing the making of a contract with a responsible person or company to build defendant’s road for a consideration therein named that the defendant would pay plaintiffs $150,000 in its first mortgage bonds. That plaintiffs procured such a contract to be made between the defendant and the firm of Jameson, Smith & Ootting, bankers and brokers in the city of Rew York.

It appears from the petition upon which this application was made that the said contract between the defendant and Jameson, Smith & Ootting was in writing executed in duplicate and that

p. 673

•one of such originals was in possession of the defendant, and that no copy thereof was retained by or is in the possession of the plaintiffs.

To entitle plaintiffs to recover they must prove the execution -of such contract. The defendant admits that such a contract was made and does not deny that it is in the possession of the company.

We think that the motion for the discovery of the contract was .properly granted. The contract must be proved by the plaintiffs on the trial. It is, therefore, material evidence for the plaintiffs -and is in possession of the defendant. Without this evidence plaintiffs cannot safely proceed to trial and plaintiffs have no method of establishing the making of the contract except by its ■production.

There is no good reason to doubt the good faith of the appli- - cation and we think the order should be affirmed, with ten dollars costs and disbursements.

Yah Brunt, P. J., and Barrett, J., concur.