Ashley v. Whitney — 6 N.Y. St. Rep. 820

Majority

p. 820

Dwight Ashley, as Administrator, etc., App’lt, v. James M Whitney et al., Resp’ts.

(New York Superior Court, General Term,

Filed May 2 1887.)

Headnote

1. Discovery—Order for, rests in discretion of the court.

The granting or denial of a motion for an order allowing a discovery, inspection and copies of books of a defendant, rests in the discretion of the court.

2. Same—Petition for—When insufficient.

A petition for such an order, disclosing as the ground for granting it merely suspicion of the incorrectness of the defendant’s accounts, without alleging any error detrimental to the plaintiff, is not sufficient.

p. 821

Appeal from an order made at special term denying a motion made by plaintiff for a discovery, inspection and copies of the defendants’ sale books, etc., containing transactions with plaintiff’s testator from 187U to 1885.

Abel JEJ. Blackmar, for pl’ff and app’lt; W. H. Arnoux, for def’ts and resp’ts.

—The granting or denial of this motion was in the judicial discretion of the court, and there is nothing before the court to show that that discretion has been abused.

The petition of the plaintiff disclosed his reasons for suspecting the general incorrectness of the defendants’ accounts, and for his expectation that testimony to prove errors can be found in the books.

But he does not specify any error or fraud in the accounts detrimental to plaintiff’s intestate, and the examination applied for would, if it had been granted, lead only to a search for evidence, without any special aim or special subject of inquiry. This is not the legitimate object of the motion.

The order appealed from must be affirmed, with ten dollars costs.

Sedgwick, J., concurs.