Mora v. McCredy — 15 N.Y. Super. Ct. 669

Majority

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Jose M. Mora, and another, Appellants, v. Dennis A. McCredy, and another, Respondents.

Headnote

1. An order, requiring the plaintiff to produce, or give copies of, papers, to enable the defendant to answer the complaint, will not be made when it is manifest that the defendant has no defence, which he cannot set up in due legal form, to raise the proper issues, without the aid of such papers.

2. Discovery may be ordered, to assist the defendant to facts, without which he cannot frame an answer which will protect his rights in the action itself; but the object for which discovery will be ordered, is not to prevent a defendant from answering untruthfully.

8. It may be very much desired by a defendant to know, before he answers, what facts the plaintiff may be able to prove, and what admissions or evidence, statements and accounts rendered by him to the plaintiff may contain; and such knowledge might, perhaps, serve as a useful precaution, admonishing the defendant what he may not, with safety to his reputation, aver or deny; 1>ut such considerations are no reasons for compelling a discovery, to enable the defendant to answer.

(Before Bosworth, Hoffman, Slosson, Woodruff, and Pierrepont, J. J.)

Heard, Jan. 16th;

decided, Jan. 23d, 1858.

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This was an appeal, by the plaintiffs, from an order, requiring the plaintiffs to produce accounts and papers, to enable the defendants to prepare their answer to the plaintiffs’ complaint.

The allegations on behalf of the defendants, upon which their application for a discovery was made, were, in substance, that the action was brought to recover from the defendants the sum of $4719.54, which they had received for the plaintiffs, the same being the proceeds of notes which the defendants, as brokers, had sold or negotiated for the plaintiffs, the sum claimed being1 a bal-. anee, after a long series of heavy transactions, running through a period of several months.

The defendants allege that this balance, so claimed by the plaintiffs, is retained by them, and is due to them, as and for commissions on their transactions, as brokers for the plaintiffs, and for their services therein.

The plaintiffs deny the legality of such retention of the money; say this sum is over and above the defendants’ proper commissions, and is now set up without truth, and without any just cause; and they say that this same claim, now made, was once before made, and the same sum was once charged in the account rendered by the defendants in the progress of the dealings, but was, on objection by the plaintiffs, struck out and abandoned, and the defendants’ account settled on a waiver of any such claim ; and that the dealings of the parties thereafter continued, until shortly before this suit was brought; and now the defendants have set it up, without any right, as an excuse for not paying over the balance of moneys in their hands belonging to the plaintiff.

The defendants state, that from time to time, as the several loans were effected, or sales of notes made, they rendered accounts and statements of the transactions, showing the terms of sale, their charges. for commissions, and the net proceeds, of which accounts and statements they have retained no copies; and they now state, on the advice of their counsel, that it is necessary that they should have copies, or inspection and an opportunity to take copies, before they can safely answer the complaint; and for that production, etc., the motion was made.

"The motion was heard at Special Term, before Mr. Justice Slosson, and an order made, that the plaintiffs either cause copies to b'e made at the expense of the-defendants, and deliver such

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copies, under oath, etc., or deposit such accounts and statements with the clerk of the Court, so that the defendants may take copies.

From this order, the plaintiffs appealed to the General Term.

Francis H. Dykers, for the plaintiffs (appellants).

Batallo & Doyle, for the defendants (respondents).

The only object for which a discovery is now sought, and the only useful purpose which it is claimed such discovery would serve, is to enable the defendants to answer, the" plaintiffs’ complaint.

The complaint is, that the defendants have, as the plaintiffs’ brokers, received, at various times, divers large sums of money, being the proceeds of. the sales of notes entrusted to them by the plaintiffs for sale; and that, on the 19th day of October; 1857, the defendants had in their hands a balance, belonging to the plaintiffs, of $4719.54, being proceeds of such sales, received by the defendants, over and above all commissions for selling, etc.

•The accounts, or statements, of which discovery is sought, can be material or useful for the purpose of answering the complaint, only from their connection with, or relation to, the possible de- ' fences which the defendants may make to the claim.

We cannot learn, from the complaint or affidavits on which the order was made, nor is it suggested by the defendants’ counsel, that there is any defence in this case, unless it consist of one or more of the following, viz.:—

A denial that the money claimed by the plaintiffs was received by the defendants; a denial that it remains in the defendants’ hands; or, what may be equivalent, and perhaps a better answer, an averment that the defendants have paid it over to the plaintiffs ; or, lastly, a claim to set off the defendants’ commissions, or the value of their services rendered to the plaintiffs in negotiating the sales mentioned.

The papers sought may, perhaps, be useful when the defend- . ants come to prepare for trial; but how they are necess'ary to enable the defendants to answer the complaint, is not apparent;

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it does not appear from the papers, and counsel failed to suggest any reason, why it was deemed necessary.

If the defendants know or believe that they have received the plaintiffs’ money, they can and ought to admit it. If they have not knowledge or information sufficient to form a belief, they are not bound to admit it, but may state the want of such knowledge and information, and this will constitute an issue. .

If they know, or upon information believe, that they have not received the money, they can say so.

If, having received it, they know or believe that they have paid it over to the plaintiffs, they can so state.

And, finally, if they know or believe that the sum claimed, or any part of it, is justly due to them, or that they are entitled to retain it for commissions or for services, there is not the slightest difficulty in averring this in their answer.

It may possibly be true, that in the accounts and statements which the defendants have rendered, they have committed themselves by what is tantamount to an admission that they have no claim to retain this money from the plaintiffs; or there may be other reasons, appearing in these statements, which make the defendants feel it to be dangerous to answer under oath, lest these statements and accounts, rendered by themselves, may convict them of error; but this is no reason for compelling a discovery. Or it may be, that if the accounts and statements were produced, the defendants would be satisfied that their claim could not be established, and so would not think it best to answer at all; but it is not with a view to any such result that a discovery will he ordered. Discovery may be ordered to assist a defendant to facts without which he cannot frame an answer, with safety to his rights; but it is not intended to protect him from answering untruthfully, or to inform him how fully he may have furnished the plaintiff with the means of disproving the answer which he may propose to interpose.

The papers sought by the defendants’ motion, cannot furnish the materials for their answer, though their examination might be a useful precaution, admonishing the defendants not to answer untruthfully, if they were so inclined.

The order appealed from must be reversed.

Ordered reversed.