Kings County Bank v. Dougherty — 49 N.Y. St. Rep. 811

Majority

p. 811

The Kings County Bank of Brooklyn, Resp’t, v. Edward J. Dougherty, App’lt.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

Discovery—Petition.

The fact that a petition for discovery of books is in part based upon information and belief is not fatal, where the essential averments are stated positively and are supported by the affidavit of an accountant, who has made a partial examination of said books.

Appeal from order denying application for a discovery of plaintiff’s books.

Action upon a promissory note. The petition for the order stated that defendant received no consideration for the note ; that plaintiff paid no value for the same, and that its books would so show; that defendant had no other means of proving these facts ; that evidence thereof was necessary to his defense; and that such discovery and inspection was intended for use on the trial.

Hildreth & Barker (John J. Adams, of counsel), for app’lt; Goodrich, Deady & Goodrich (Avery F. Cushman, of counsel), for resp’t.

Upon examining the petition, supplemented by the affidavits of the attorney at law and expert accountant, we think a proper case was made out for the granting of the order for an inspection of the plaintiff’s books. The objection that the petition is, in part, based upon information and belief is not fatal, for the reason that the essential averments are stated positively, and receive support from the accountant, who, in the examination already made in action No. 1, states the condition of the account of Giulia Brandéis with the bank, and the necessity for requiring, in order that the defendant might obtain the information requisite for his defense, a further examination than that accorded by the former order of discovery, which limited the period over which the examination should extend. We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and upon the settlement of the order counsel will be afforded an opportunity of presenting their views as to the extent of the examination.

O’Brien and Barrett, JJ., concur.