Andrews v. Townshend — 48 N.Y. Super. Ct. 162

Majority

p. 162

HANNAH W. ANDREWS, as Guardian, &c., Respondent, v. JOHN TOWNSHEND, et al., Appellants.

Headnote

Inspection of papers, &c., under Code Civil Procedure, § 803.

The right of a party to the inspection of papers, &c., under section 803 of the Code of Civil Procedure, is confined to those papers that relate to maintaining the position taken by the applicant, not that of the opposite party, there being no claim that the papers are forged.

Before Sedgwick, Ch. J., and Freedman, J.

Decided April 3, 1882.

Appeal by defendant from an order requiring the defendant to deliver to plaintiff’s attorneys copies of certain papers referred to in answer of defendant.

The petition, among other things, averred that the defendant, made an affirmative claim of a right to possession under certain conveyances and assignments of mortgage, and that an inspection of the writing was material and necessary to establish her case, to ascertain the date of the alleged conveyance and alleged assignment, and what was conveyed or assigned thereby, and if same was properly executed, and to ascertain whether said defendant is in possession of said writings. There was no allegation that the papers were forged or of any suspicion that they were.

John Townshend, appellant

Cited: Code Civ. Proc. 803 ; Code Proc. § 388; 2 Wait Pr. 331; Meaking v. Cromwell, 1 Sandf. 698 ; Brevort v. Warner, 8 How. 324 ; Mott v. Consumers’ Ice Co., 2 Abb. N. C. 145 ; Strong v. Strong, 1 Abb. Pr. N. S. 237.

John Andrews, for respondent.

The cases cited for appellant show, that the writings to be inspected must relate to the maintaining the position

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taken by the applicant, not that of the opposite party. As there was no application on the ground that the papers might be forged, the order should be reversed, with $10 costs and disbursements to be taxed.

Freedman, J., concurred.