McAllister v. Pond

Headnote

In a proceeding.for the discovery of books and papers, (which is a summary and, in some respects, an extraordinary remedy,) the court is to be governed by the principles and practice of the (late) Court of Chancery, in compelling discovery. So say the Revised Statutes, (2 R. S. 191, § 31.) In this respect there is no reason to believe that the legislature intended to introduce any new rule, when ' the provisions of § 388 of the Code were enacted.

The rules of the court, (8, 9, 10, etc.,) contemplate the setting forth, by petition, of facts and circumstances which show that the discovery is necessary, and that the party applying therefor is entitled to demand it of the adverse party. A mere statement that in the opinion of counsel the discovery sought is necessary, will not suffice, Such a statement is requisite, but it is cumulative.

One of the first facts which should appear on an application for a discovery of hooks and papers, for the purpose of preparing for trial, is, that the applicant has not in his possession the same information, or if he has, that he has not the means, of establishing, by other available proof, the contents of such books or papers.

In this case it in no wise appeared, by the petition, that the plaintiff was ignoraut of any particular which was necessary to enable him to prepare for trial, on which was contained in the books and papers sought to be produced. There was a failure to show a want of the requisite information to enable the plaintiff to prepare for trial; and it was not stated that the plaintiff had any need of

the defendants’ books and papers, for the purpose of establishing the particulars of the accounts between the parties; nor that he could not prove, without the production sought, every fact which was material to his case.

And besides, it appeared that the books of the defendants, of which discovery was sought, had been freely offered to the plaintiff’s attorney for examination and inspection, and he had omitted to avail himself of the opportunity. Motion denied. (Reported in 15 How. Pr. R. 299.)