Francis v. Porter

return of that order, affidavits were read by the defendant, in which it was stated that most of the books and papers of which a discovery was sought were not under or within his control. The court, after reading and filing the papers of both parties read on the application, and after hearing counsel for the respective parties made an order requiring a certain assignment to be deposited with the clerk of Onondaga county, to remain there until the further order of the court, and in other respects denied the motion or application, with ten dollars costs to abide the event, but with leave to the plaintiff to renew his application for inspection upon the same papers without reservice, and to furnish further papers alleging certain facts more fully than they were alleged in the original petition and papers accompanying it. The court also ordered a reference to take proof as to what books and papers the defendant had the power to produce for inspection to be used upon a further application, and gave the plaintiff the right upon such hearing to cross-examine the defendant in relation thereto. From the latter portion of the order the defendant appealed. His contention is that, inasmuch as the court denied the plaintiff’s application for discovery, no motion or proceeding was pending in which an order to examine a party as upon a motion could be made, and hence that the portion of the order appealed from should be reversed. That the plaintiff’s application for an inspection was denied, is admitted by the respondent. It is manifest that, except as to the assignment ordered to be filed with the clerk of Onondaga county, the court denied the plaintiff’s application for the reason that upon the papers produced upon the hearing it was of the opinion that the plaintiff was not entitled to the relief asked for. With the exception mentioned, and that giving a right to renew, the order was one absolutely denying the plaintiff's application, with costs to abide the event of the action. Thus the question arises whether, after the application had been absolutely disposed of by granting a portion of the relief sought and denying the remainder, the court had authority to make an order appointing a referee to take the proof mentioned. Unless the legislature has, by some statute, conferred upon courts the power to make such an order, it does not, we think, exist. While the Code provides that where a court is authorized by that act to make an examination or inquiry it may direct a reference (section 827), that it may appoint a referee to report upon a question of fact arising upon a motion (section 1015), and that a referee may be appointed to take the deposition of a person not a party, to be used on a motion (section 885), yet we find no authority in these or any of the provisions of the Code which authorized the court to appoint a referee to take proof on a motion or application of this kind, when it had been already decided, and no question in relation to it was pending before the court. In this case no steps had been taken under that portion of the order which gave the plaintiff leave to renew his application, and consequently no proceedings in renewal of such application were pending. If the court, instead of absolutely deciding the application of the plaintiff, had suspended the hearing, and directed a reference to ascertain or talce

proof as to certain questions of fact that were before it, another question would have been presented. The respondent has called our attention to no authority, statutory or other, which would uphold this order. We are of the opinion that the court was not justified in granting the portion of the order appealed from, and that it should be reversed. The respondent’s contention that the order was not appealable to this court cannot, we think, be sustained. The portion of the order appealed from affected a substantial right of the defendant, and reviewable upon the merits-upon appeal under subdivision 4 of section 1347 of the Code of Civil Procedure. Central Trust Co. v. New York C. & N. R. Co., 42 Hun, 602 ; 4 St. Rep. 639 ; Whitaker v. Desfosse, 7 Bosw. 678 ; Moffat v. Moffat, 3 How. Prac. (N. S.) 156.

Order, so far as appealed from, reversed, with $10 costs and disbursements. All concur.