Brownell v. National Bank

Headnote

Order for production of books to enable the plaintiff to frame his complaint— when not allowed — fishing examinations not permitted.

Appeal from an order, made at Special Term, requiring tbe defendants to permit an inspection and copy to be taken of certain books and entries in their possession, to enable the plaintiffs to frame their complaint.

The petition stated that the action was brought by the plaintiffs, as stockholders of the National Bank of Gloversville, to recover damages occasioned by the negligence and violations of duty on the part of the defendants as directors and officers thereof, whereby a large amount of its capital and funds had been wasted.

The order appealed from required the defendants, in order thajt the plaintiffs might frame their complaint, to permit an inspection, with copy, of the books of the bank, including the day-book, deposit ledger, bank ledger, discount book, tickler, certificate book, scratcher, draft book, statement book, book of records of the meetings of the directors during the years from 1875 to 1877 inclusive, together with the letters, papers, bills, notes and memo-randa written, received, made or taken in the business of said bank during those years.

The court, at General Term, said : “ This is evidently what is well called sí fishing examination to enable the plaintiffs to discover something, if there be anything worth the discovery. It has been frequently held that such an examination should not be granted.

It is manifestly oppressive. (Walker v. Granite BanJc, 44 Barb., 37 ; Mott v. Consumers Ice Go., 52 How., 148 ; affirmed, 244; Phelps v. Platt, 54 Barb., 557 ; and see Pegram v. Oarson, 18 How., 519 , and oases there cited.)

“ The petition on which the order was granted shows that the plaintiffs have no knowledge of any particular entries which they need to see in order to frame a complaint. They say that they ‘ desire information in respect to said losses, the amount thereof, the causes of the same, and the actions of the defendants as such directors and officers in respect thereto and in respect to the general management of the business.’ This is substantially saying that they wish to examine the books of the bank in order to find out whether there may not be some ground or other for a cause of action on which to make out their complaint.”