Leach v. Haight

Headnote

Deposition—Instruction and discovert.

Where there is absolutely nothing shown to entitle the plaintiff to an inspection of books and papers in order that she might prepare her complaint, but, on the contrary, the petition which she presents to the court shows that she is in possession of every fact or circumstance that will be necessary for her to know in order that a formal complaint may be prepared, no case is made out for an order for inspection of books prior to the joining of -issue.

Appeal from an order, directing the inspection and discovery of certain books of account.

Plaintiff’s petition for the discovery is as follows:

The petition of Adele W. Leach respectfully shows: That she is the plaintiff in the above-entitled action, which is brought for the purpose of recovering damages against the defendants for the misappropriation of the moneys of your petitioner. That the said defendants are co-partners in the business of buying and selling stocks and other securities, as agents and brokers, on commission, and, as such agente and brokers for the plaintiff, received certain moneys of her, for the purpose of buying and selling cer

tain stocks and other secuities, between the 28th day of August, 1895, and the 9th day of November, 1895, to the amount of twenty-five thousand dollars. That said action is about to be commenced by the service of the summons and complaint therein, and a copy of the summons therein is hereto annexed. That it is necessary for your petitioner, in order to enable her to frame her complaint, to obtain a discovery or inspection of certain books, to wit, the order book and journal of the defendants, which said books relate to the merits of said action, and are in the control and possession of the said defendants; and your petitioner has no means whatsoever of obtaining the said facts and information, save from an inspection of said books. That the information sought to bo obtained from the discovery and inspection of said books is as follows: Of whom the defendants bought certain stocks, securities, and other values, for account of your petitioner, between the 28th day of August, 1895, and the 9th day of November, 1895, and to whom they sold certain stocks, securities, and other values, for account of your petitioner, between the 28th day of August, 1895, and the 9th day of November, 1895; and that said books contain such information. That your petitioner has demanded of the defendants the said facts and information, and leave to inspect said books; but said defendants have utterly failed, refused, and neglected to give to your petitioner said facte and information, or to give your petitioner leave to make such inspection. Wherefore your petitioner prays that this court may grant an order that the said defendants to give your petitioner an said books, or require said defendants to give your petitioner an inspection and copy of said books, so far as they contain the transactions between your petitioner and said defendants, or permission to take a copy thereof. And your petitioner will ever pray.

ADELE WARNER LEACH.

Dated New Tork, March 10th, 1896.