p. 393Though the complaint contain an averment that defendant “ refuses to pay said balance and has converted the same to his own use,” it will not beheld on a motion for inspection, etc., that the averments as to the accounts, are immaterial for the purposes of defendant’s said motion.
In such a case defendant should be allowed an inspection of his books of account as such agent, if necessary to enable him to meet the appearance of the accounts set forth in the complaint, and make a substantial allegation as to what the accounts altogether showed.
That it is alleged that such books were falsely and fraudulently made up-by defendant, renders it the more proper to grant an inspection.
Before Sedgwick, Ch. J., and Freedman, J.Decided December 3, 1883.Appeal by plaintiff from an order granting to the defendant an inspection of certain books and papers in the possession of plaintiff, for the purpose oí properly drawing the answer. The books, papers, etc., of which an inspection was desired, were the following:—the journal and ledger kept by defendant as superintendent of plaintiff ; a certain balance sheet taken therefrom ; and certain vouchers in support thereof.
Further facts appear in the opinion.
Easton & Jennings, for appellant.
—The order sought is not a matter of right, but a "privilege, which will only be granted in an extreme case, where the refusal would involve the loss of a claim or defense (Harbison v. Van Valkenburgh, 5 Hun, 454 ; Stanton v. The Delaware M. Ins. Co., 2 Sandf. 662 ; M. E. Ins. Co. v. N. Y. L. & Imp. Co., 55 How. Pr. 351 ; Strong v. Strong, 1 Abb. N. S. 233; Gelston v. Marshall, 6 How. Pr. 398 ), and must in all cases be-brought within the requirements of General Rule 14 (Code Civ. Pro. § 804).The action being to recover damages Cor conversion, the only answer necessary for the defendant to interpose under which his defense will be fully preserved, and under which he could offer evidence tending to explain the plaintiff’s claim, would be a denial that he had converted the funds.
p. 394The application should never be granted when the books and papers can be reached by subpoena, duces tecum (Van Zandt v. Cobb, 12 How. Pr. 544 ; Commercial Bank of Albany v. Dunham, 13 lb. 541; Brevost v. Warner, 8 lb. 321; Iron Co. v. Loan Co., 55 lb. 351), and § 888 of the Code of Civil Procedure has made provision for the production of books, &c., of a corporation by subpoena, daces tecum (Central Cross-Town R. R. v. 23d St. R. R. Co., 4 Week. Dig. 324).It is not enough that the books sought may contain facts or evidence. The petition must show that papers, &c., sought are absolutely necessary in protecting the defendant’s right by answer (Stanton v. Delaware Ins. Co., 2 Sandf. 662 ; Campbell v. Hodge, 2 Hun, 308 ; Walker v. Granite Bank, 19 Abb. 111 ; Brownell v. Nat. Bk. Gloversville, 10 Week. Dig. 17). The papers sought must contain the facts, not information from-which they maybe obtained, and the petition must so state (Brooklyn Life Ins. Co. v. Pierce, 7 Han, 236; Morrison v. Sturgin, 26 How. Pr. 177 ; McCallister v. Pond, 15 lb. 299; Thompson v. E. R. R. Co., 9 Abb. N. S. 212; Marquette v. Note Company, 7 Robt. 77; N. E. Iron Co. v. N. Y. L. & Imp. Co., 55 How. Pr. 351 ; Davis v. Dunham, 13 ld. 425). Fishing expeditions will not be permitted (Strong v. Strong, 1 Abb. N. S. 239).The practice of allowing discovery is not favored (Houseman v. Sterling, 61 Barb. 347 ; De Bary v. Stanley, 5 Daly, 412 ). The courts look upon applications with suspicion (Jockling v. Brown, 3 E. D. S. 539).Frank E. Blackwell, for respondent.
—Although this is technically an action for a conversion, the proper determination of it requires the examination of a long account. On this ground it is distinguishable from the case of Mora v. McCredy ( 2 Bosw. 670 ).Where there is reason to believe that evidence material
p. 395to the issue exists in documents, admitted by the other party to be in his possession, and no great practical inconvenience will follow from allowing a party to inspect them, a discovery will be allowed (Lefferts v. Brampton, 24 How. 257 ; Union Paper Collar Co. v. Met. Collar Co., 3 Daly, 171 ; Case v. Banta, 9 Bosw. 595 ; Ruberry v. Binns, 5 ld. 585).The books and documents in question belong equally to both parties. They are the private books of the superintendent delivered over to the general manager of the company for its information. Under such circumstances it was the uniform rule under the old practice to grant inspection (Kelly v. Eckford, 5 Paige, 548; Case v. Banta, 9 Bosw. 595 ; Manley v. Bonnel, 11 Abb. N. C. 124 ; Ruberry v. Binns, 5 Bosw. 685 ).The Code purposely leaves a large discretion with the court in respect to the granting of this relief (§ 804). The only matters required to be established are the possession of the documents by the adverse party and the materiality of their contents (Id. § 803; Stillwell v. Priest, 85 N. Y. 649 ).—The complaint alleged that the defendant was the superintendent of the plaintiff, and that it was his duty to receive property and moneys of the company, to pay certain expenses and to pay certain balances to the plaintiff; that on a day specified, the defendant reported that he had a balance in his hands belonging to the plaintiff of $10,872; that after that date the defendant received certain other large sums specified in the complaint, for the plaintiff ; that afterwards the plaintiff demanded from defendant a statement of the amounts received and disbursed by him, and in response to such demand the defendant delivered various vouchers, 11 by which it appeared that he had paid out and expended for this company” “ the sum of $19,770, and that there is still in his hands belonging to said company and unaccounted for the sum of $50,468 ;” that the plaintiff demanded payment of this amount; that
p. 396defendant has neglected and refused, and still neglects; and refuses to pay the same or any part thereof, “ but has-converted the same to his own use.” On the application it was shown that at the time the defendant delivered to-the plaintiff the vouchers last referred to in the'complaint, he also delivered certain books containing accounts made by him of his doings as superintendent. The plaintiff-presented in his affidavit statement that these accounts were false.
The plaintiff claims that the action is for conversion of money received by defendant and therefore that the-allegations of the complaint as to the vouchers, etc-., are-immaterial. If they were material, there is no reason for-saying that the defendant should be deprived of the benefit of (he face of accounts presented by him, on which the complaint is drawn against him. It does not seem just, when the plaintiff has used allegations as if they were material and proper to be answered, that he should take a different position when it is for his interest to do so, and which it-will not by the face of the record, appear thereafter that he has taken.
To meet the allegation upon the appearance of some off the accounts, it was proper to allow the inspection of the accompanying accounts so that the defendant might make-a substantial allegation in his answer as to what the accounts altogether showed.
It was charged that the accompanying accounts had been fraudulently and falsely made by the defendant. Om this charge, it was the more proper, that the defendant'should inspect them.
It is not meant, that if the action had been for conversion, and there were no immaterial allegations, that an inspection should have been ordered. The case is decided on its peculiarities and cannot be a-precedent when such peculiarities do not exist.
Order affirmed, with $10 costs.