Hyperlawhypertext legal database Merguelle v. Continental Bank Note Co. 30 N.Y. Super. Ct. 77

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Merguelle v. Continental Bank Note Co.

30 N.Y. Super. Ct. 77 7 Rob. 77 Court N.Y. Super. Ct. English

Delivered by Robertson, Ch. J.

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p. 77
Harriet Merguelle, administratrix, &c. plaintiff, vs. The Continental Bank Note Company of the city of New York, defendants.

Headnote

1. An affidavit on which a motion for a discovery of books and papers is made, which merely alleges that there are in the possession of the defendants various letters, receipts and accounts, in the handwriting of the moving party, “ containing evidence in relation to the subject of the action,” and “ to the merits of the action ” is not sufficient to ehable the court to pass upon the question whether the contents of such books and documents are at all material as evidence in regard to any issue in the action. The plaintiff is not entitled to the inspection of all of such books, merely to obtain information how, or in reference to what matters, to get other evidence.
1. Nor is it sufficient that such books may possibly furnish such evidence. The documents must be set forth with sufficient precision to enable the court to determine for itself, whether they ought to be produced, as containing material evidence.
p. 78
3. The mere death of a party can give Ms representative no superior right, in respect to a discovery of books and papers, to that which he would have had if living.
4. A plaintiff suing as administratrix is however, it seeins, entitled to copies of any accounts rendered by her intestate as agent, and to sworn-copies of any entries made by the defendants in their books to his credit. Other papers must be obtained by subpoena duces tecum.
(Before Robertson, Ch. J. at special term,
March —, 1868.)
Motion for a discovery of books and papers.
H. S. Bonnet, for the plaintiff and motion.
H. H. Stewart, for the defendant, contra.

This is an application by the plaintiff for a discovery of books and papers in the custody of the defendants. The action is for the services of a deceased intestate (James Merguelle) of whose estate the plaintiff is administrator, as agent in procuring orders for work by the defendants. -A bill of particulars has been demanded of the plaintiff and she desires to'amend her complaint. The books and papers applied for are, copies of letters to the deceased from the defendants, a record kept by them of his'expenses, his drafts, orders, receipts and letters,' and the accounts with him kept by the defendants. The affidavit on which the motion is made, states only that there are in the possession of the defendants various letters, receipts and accounts in the handw’riting of the deceased, “ containing evidence in relation to the subject of the action” and “to the merits of the action.” This allegation is not enough to enable the court to determine that the contents of such books and docúments are at all material as evidence in regard to any thing in issue in the action. And the plaintiff is not entitled to the inspection of all of them to obtain mere information how, of in reference to what, to get evidence, ( Woods v. DeFiganiere, 1 Rob. 681 . Morrison v. Sturges, 26 How. 177 .) Nor is it

p. 79
sufficient that such books may possibly furnish such evidence. The documents are not set forth "with any precision to enable the court to order them to be produced. (Jackling v. Edmonds, 3 E. D. Smith, 539. Low v. Graydon, 14 Abb. 443 . Mora v. McCredy, 2 Bosw. 669 .) The death of the intestate cannot give his representative superior rights to what he would have had if living. The plaintiff is, however, probably entitled to copies of any accounts rendered by her intestate as agent. (Smith v. Winter, 3 M. & W. 309. Pritchett v. Smart, 7 C. B. 625 ,) and to copies of any entries made by the defendants in their books to his credit. (Brevoort v. Warner, 8 How. Pr. 321 .) Any other papers must be obtained by a subpoena duces tecum. (Id.) I cannot see how a knowledge of what the defendants have paid upon orders or for the expenses of the intestate can aid the plaintiff in making out his charges against them. The order must be confined to sworn copies of the accounts and entries before mentioned, to be given as the expense of the plaintiff.

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