Majority
p. 385THE SHOE AND LEATHER REPORTER ASSOCIATION, Respondent, v. ISAAC H. BAILEY, Impleaded, etc., Appellant. Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ. Decided December 3, 1883.
Headnote
Inspection of writings—when granted.'The provisions of the Code have not changed the chancery rule in regard to a bill of discovery, viz.: that plaintiff may have a discovery of matters necessary to maintain his own title, but is not entitled to a discovery of the title of his adversary, which he denies, and that it only where plaintiff is entitled to the discovery of deeds, etc., for the purpose of establishing his own case that his right to the discovery will not be affected by the fact that the same deeds, etc., are evidence of defendants’case.
Appeal from order denying defendant’s motion, after issue joined, for discovery and inspection of writings.
It appeared from the petition that the action was for an alleged conversion by defendants of the contents of a certain printing office of which plaintiff claimed to be the -owner, and that the defense was that the property was taken in execution on a judgment against one Belden, the the real owner thereof, and on the 26th of August, 1875, bought in good faith, and for value, by defendants, on a .•sale by the sheriff; further, that any transfers of the property by Belden to the plaintiff were made in pursuance of a scheme to defraud said Belden’s creditors, part of which scheme was the filing of the certificate of incorporation of plaintiff, which was done but one day prior to •said sale to defendants. The petition also set forth other facts tending to support the charge of fraud; stated that defendants had remained in undisturbed possession till ■September 1,1881, the time this action was begun; and finally prayed an inspection and discovery of any and all conveyance or conveyances in writing, and other instruments in writing upon which the plaintiff or its said attorney intends to rely, or which the plaintiff, or its said.
p. 386—The application should be granted if it.would be just and reasonable to-grant it, and it should not be refused on merely technical grounds (Lefferts v. Brampton, 24 How. 261 ). The order should be granted when in the exercise of discretion the court deems such discovery proper (Powers v. Elmendorf, 4 How. 61 ; Code Civ. Pro. §§ 807, 803, 806; 2 R. S. 199, § 21; 3 Ed. p. 262). “As the object of this jurisdiction in cases of bills of discovery is to assist and promote the administration of public justice in-.other courts, they are greatly favored in equity ” (2 Story Eq. § 1488). Andrews v. Townshend, a case of ejectment, is not an authority against the motion. We set up a general scheme of fraud that antedates the suit itself, which is a part of the fraud, and one of the fraudulent acts was making fraudulent and merely colorable conveyances to hinder and delay creditors. That the allegations of fraud will sustain the motion, see Brevoort v. Warner, 8 How. 326 ; Apthorpe v. Comstock, Hop. 149; 8 Cow. 386 , 1 Dan. Ch. Pl. Pr. Perkins’ Ed. [4 ed. 579], 632. Where either party shows conclusively that the evidence sought is material to his case, their right to a discovery is not affected by the fact that it is also material to the case of the adverse party (Riccard v. Inclosure Comm., 4 Ell. & Bl. 329; London Gas Light Co. v. Chelsea, 6 C. B. U. S. 411). Sections 1490-1493, 2 Story Eq. Jur., show the application of the rule as to production of title papers, and that it has primary
attorney intends to produce on the trial of this action for the purpose of proving or establishing the title of the plaintiff or its interest in or its right to the possession of the property mentioned in the amended complaint herein.
The affidavits in opposition verified by plaintiff’s attorney denied possession or knowledge of such papers by him, and also denied generally the allegations of fraud in the petition.
The motion was denied on the authority of Andrews v. Townshend (48 Super. Ct. 162).
W. B. Winterton, for appellant.
p. 387reference to questions of title to land between heir and devisee and the like ( 1 Sand. Ch. 98 , supra), and that the rule, even in such cases, is not sweeping or inflexible. And see Story Eq. Pl., §§ 591-594; Harris, J., in Powers v. Elmendorf ( 4 How. Pr. 61 et seq.). That the court will assume that the papers can be produced, and that defendant is entitled to an inspection. See Lefferts v. Brampton (supra); Hepburn n. Archer, ( 20 Hun, 537 ); Amsinck v. Northrup (12 Week. Dig. 573); Thompson v . The Erie Railway Co. (9 Abb. N. S. 212); Casard v. Hinman ( 6 Duer, 695 ); Kimberly v. Sells ( 3 Johns. Ch. 467 ); Price v. Harrison (8 C. B. N. S. 617). —This application is in the place of the former bill of discovery in the court of chancery (2 R. S. 199; Townsend v. Lawrence, 9 Wend. 458 ). One of the rules there was that the discovery must relate to the title of the party seeking the discovery, and the evidence must be for him and not as to the title of the opposite party (Story's Eq. Pl. § 317; also, note 2, p. 258; Cooper Pl. 58, 197; Mitford Pl. 189). This rule also applies to proceedings under the Code (Brevoort v. Warner, 8 How. 321 ; Davis v. Dunham, 13 How. 428 ; Commercial Bank of Albany v. Dunham, 13 Id. 545 ; Pegram v. Carson, 18 How. 522 ; Strong v. Strong, 1 Abb. N. S. 233; Andrews v. Townshend, 48 Super. Ct. 162; 2 Wait's Pr. 531). The law does not authorize a discovery as a precautionary measure or to enable a party to prepare to answer his adversary’s case. It must appear to be necessary (Woods v. Figarine, 25 How. 528 ; Campbell v. Hoye, 2 Hun, 309 ; Holtz v. Schmidt, 2 J. & S. 28-31). The existence of the papers must be shown positively, and that they are material and contain material evidence (Speyers v. Forstitch, 5 Rob. 606 ; Walker v. Granite Bank, 4 Barb. 39 ; 19 Abb. 111 ; Harison v. Vanvalkenburgh, 5 Pun, 454; Mott v. Consumers’ Ice Co., 2 Abb. N. C. 144 ).
Henry Brewster, for respondent.
—Upon an application for a bill of discovery the rule in chancery was; that the plaintiff might have a discovery of matters necessary to maintain his own title, as for example, deeds under which he claimed. But he was not entitled to have a discovery of the title of his adversary from whom he sought the discovery and whose title he denied. It was only when the plaintiff was entitled to a discovery of deeds or documents for the purpose of establishing his own case, that his right to such discovery was held to be not affected by the circumstance that the same deeds or documents were also evidence of the defendants’ case. These principles have not been abrogated or changed by the Code of Civil Procedure.
In the case at bar, the applicant did not bring himself within the exception, for the allegations and the prayer of his petition show, that all he wanted was to discover and inspect conveyances and instruments in writing which he could not specify, which he- did not even know to exist, but which he suspected the plaintiff might produce on the trial for. the purpose of establishing its title to, or its interest in, or right to the possession of, the property mentioned in the amended complaint.
Thó order should be affirmed, with costs.
Sedgwick, Ch. J., and O’Gorman, J., concurred.
Cases cited
- Comstock v. Apthorpe 8 Cow. 386 p. 386
- Kimberly v. Sells 3 Johns. Ch. 467 p. 387
- Townsend v. Lawrence 9 Wend. 458 p. 387
- Speyers v. Torstritch 5 Rob. 606 p. 387