Fleet v. Cronin — 74 N.Y. St. Rep. 857

Majority

p. 857

Irene A. Fleet, Resp't, v. Helen M. Cronin, Executrix, etc., App'lt.

(Supreme Court, Appellate Division, First Dept.,

Filed May, 1896.)

Headnote

Discovery—Application.

Until the cause is at issue, an application for a discovery of books- and papers for use upon the trial is premature.

Appearl from an order, requiring defendant to make discovery of certain papers.

I. Newton Williams, for app’lt; L. A. Gould, for resp’t.

This motion was made after issue joined to-obtain a discovery and inspection for use by the plaintiff upon the trial. After the motion was noticed, an amended complaint was-served, to which it does not appear that any answer has been interposed. As the service of an amended complaint destroyes the issuesraised by the original pleadings, and as the defendant has not-joined issue upon the amended complaint by serving an answer, the motion should have been denied; it having been many times-held that, until the cause is at issue, the application for discovery of books and papers for use upon the trial is premature.

The order should he denied, with $10 costs and disbursements, and the motion denied, with $10 costs, but with leave to plaintiff' after issue joined to renew the motion.