Bien v. Hellman — 49 N.Y. St. Rep. 617

Majority

p. 617

Julius Bien et al., Resp’ts, v. Theodore Hellman et al., App’lts.

(New York Superior Court, General Term,

Filed January 3, 1893.)

Headnote

Discovert—Inspection of papers.

Plaintiffs sued upon an express agreement, whereby it was agreed that they should do certain printing. The complaint did not state that the agreement was in writing. Defendant H. petitioned for an inspection of the agreement, annexing an affidavit made by a eo-defendant that the agreement is in writing and signed by all the defendants except H., and denied the alleged partnership. Held, that an order for inspection was properly denied.

Appeal from order made at special term denying a motion made by the defendants for an inspection of a paper writing in the possession of the plaintiffs.

Geo. W. Seligman, for app’lts; F. Bien, for resp’t.

The plaintiffs sue upon an express agreement entered into May 22, 1891, wherein and whereby it was agreed

p. 618

that the plaintiffs should do certain theatrical printing and furnish the material therefor, for a play called “A Wolf’s Wedding,” at the agreed price of $4,200. The complaint does not state that the agreement declared on is in writing, and as it would be valid without that formality, there is no presumption as to how it is evidenced. The defendant and appellant Heilman annexes to his petition an affidavit made by one of his co-defendants, in which he states that the agreement is in writing, that it was signed by the defendants Jurgens and Reynolds, but not by the defendant Heilman.

Such being the case, the issue is narrowed down to the performance of the work and the partnership of the defendants, which Heilman denies. There is little room to doubt that the agreeYment sustains the allegations of the complaint in regard to the work and the price to be paid for it, and that Heilman can in nO' manner be held upon it except on the theory of partnership in the venture, a fact provable only by evidence aliunde. Having proved that the agreement was signed by the co-defendants, and not by Heilman (a fact not disputed), there is no conceivable ground for asking an inspection on the theory of possible forgery, as was allowed in Hepburn v. Archer, 20 Hun, 535 .

The mere fact that the plaintiffs may have in their possession the agreement sued upon does not entitle the defendants to an inspection of it, as of course, for whether we observe the old chancery rule as to bills of discovery, pure and simple, or those in which other relief was claimed, some necessity for inspection must exist before it can be directed; curiosity alone will not suffice. S. C. rule 15 ; N. E. Iron Co. v. N.Y.L.& 1. Co., 55 How., 351 ; Holtz v. Schmidt, 34 N. Y. Supr. Ct., 28 , and kindred cases. The defendant also insists that the rule declared in Roosevelt v. Elli thorp, 10 Paige, 417, applies. It was there held that “ where the defendant in his answer states the effect of a deed in his possession, without annexing a copy thereof, but for greater certainty craves leave to refer to the same when produced, he makes it a part of the answer so far as to entitle the complainant to an order for the production of the deed.”

This had reference to the practice which formerly prevailed of pleading “ Oyer,” see Bouvier L. Diet., but it is now obsolete and, therefore, requires no discussion. Bright v. Currie, 5 Sandf. 433 ; 10 N. Y. Leg. Obs., 104 ; Mayor v. Doody, 4 Abb. Pr., 127 ; Welles v. Webster, 9 How. Pr., 251 . The former practice applied only to specialties, and where the plea did not show that the agreement was under seal, profert was unnecessary and oyer not demandable. Mealey v. Met. L. I. Co., 23 Fed. Rep., 25 . In the ■ present instance, there is no intimation that the agreement sued upon is even in writing, except that furnished by the defendant Heilman, and the description of the paper furnished by him negatives all idea of its production being essential to any substantial purpose in his defense of the action. For these reasons the order appealed from must be affirmed, with costs.

Freedman and Gilderlleeve, JJ., concur.

Cases cited

Bright v. Currie 5 Sandf. 433 N.Y. Super. Ct. 1852-03-13 p. 618