Harding v. Field — 46 N.Y. St. Rep. 628

Majority

p. 628

William A. Harding, Adm’r, App’lt, v. Walter H. Field, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 13, 1892.)

Headnote

1. Discovery—Agency.

Where a counterclaim is interposed based on the same transactions out of which the moneys claimed by plaintiff arose, in which transactions it is claimed that plaintiff’s intestate acted as defendant’s agent, the defendant is entitled to a discovery of all the books and accounts in the plaintiff’s possession relating to the agency.

2. Same.

In such case a discovery of the original letters sent to intestate by defendant, and copies of letters sent by intestate to defendant, the originals of which have been lost, may be ordered.

Appeal from an order of the special term granting a motion for a discovery.

Thaddeus D. Kenneson, for app’lt; Howard R. Bayne, for resp’t.

The counterclaim set up in the answer is based upon an allegation that the plaintiff's intestate was the agent of the defendant in the transactions therein specified, and out of which the money in dispute is claimed to have been realized.

Assuming that these relations existed, it is well settled that the ■agent should make full disclosure to his principal of all the facts within his knowledge, and allow an inspection of all books and papers relating to the agency, and upon a failure to do so, the court would require him to make such a discovery. “ The right of a principal to a discovery of the books and vouchers of his ■agent seems to rest on different and stronger grounds than the right of a party to an inspection of the books of an adversary. Manley v. Bonnel, 11 Abb. N. C., 123 .

Copies of letters or accounts, sent by an agent to his principal, which are in the hands of the agent, are within the provisions of ■§ 803 of the Code, which authorizes a court to compel a party to an action to produce and discover a book, document or other paper in his possession, or under his control, relating to the merits of the action, and whether the document or other paper is an original and of itself evidence, or a copy and so competent as secondary evidence, is not material. It is, in either case, a docu

p. 629

ment or other paper which is in his possession, and when the original is proved to have been lost is competent evidence and relates to the merits of the action. We think, under the circumstances detailed in the papers upon which this motion was made, that the court was justified in compelling a discovery of the papers specified, the original letters sent by the plaintiff’s intestate to the defendant having been lost or destroyed; and copies of those letters in the hands of the plaintiff, as the administrator of the agent, are necessary to be offered as secondary evidence, the originals of which have been lost. and the fact that the defendant is unable to remember the exact date or the exact contents of letters, only shows that the production of the copies in the hands of the administrator is necessary to enable the'defendant to prove his defense or counterclaim ; and the same may be said as to the accounts which have been rendered by the agent to his principal.

The letters sent by the defendant to Stone, being the original letters, are the best and only evidence of the contents, and the checks and stubs thereof, a discovery of which is ordered, will be material evidence upon the trial of the issue to show the actual transactions involved.

Under all the circumstances, we think tlie court below was justified in ordering the discovery, and the order appealed from should be affirmed, with costs.

"Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.