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Rafferty v. Williams

50 N.Y. Super. Ct. 66 18 Jones & S. 66 Court N.Y. Super. Ct. Decision date 1884-02-04 English

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p. 66
OSCAR G. RAFFERTY, Respondent, v. JAMES H. WILLIAMS, et al., Appellants.
Decided February 4, 1884.

Headnote

Inspection of writings—when not granted.
Where an application for an inspection of writing, etc., is made before issue joined to enable plaintiff to frame his complaint, it can only be granted where the petition shows that the inspection is necessary to enable the petitioner to draw his pleading; and where the petition contains enough matter to enable plaintiff properly to frame his complaint, the application will not be granted, though it may appear that certain of the allegations cannot be made upon knowledge, but only on information and belief.
Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
Appeal by defendant from an order granting to plaintiff an inspection of documents to enable him to draw his complaint.
The facts appear in the opinion.
Eugene Smith, for appellant.
I. The agreements to be inspected are the evidences and muniments of defend
p. 67
ant’s title to the property which the plaintiff seeks to recover. But the law is well settled, that an inspection will not be allowed to compel a defendant to disclose the sources and the proofs of his own title ; the inspection must relate to the title of the party seeking the" discovery, and not to the title of the opposite party (Shoe and Leather Asso. v. Bailey, 49 Super. Ct. 385; Andrews v. Townshend, 2 N. Y. Civ. Pro. 76 ; Breevoort v. Warner, 8 How. Pr. 324 ).
II. The petition contains all the allegations upon the matters regarding which discovery is asked that are needed to form a good complaint. The action is stated to be in the nature of a creditor’s claim to set aside an alleged fraudulent sale by the judgment debtor to the defendant. The sole evidence of fraud relied on is inadequacy of consideration paid. The petition alleges that the property in question was worth $55,000, and that the consideration paid was $23,000 cash and $15,000 first mortgage on the property, and that any additional alleged consideration was fictitious and fraudulent. A general allegation of inadequacy is sufficient, without going into details to set forth in the complaint precise figures showing the exact amount of inadequacy. On the other hand, if the plaintiff does not know whether the consideration was inadequate or not, or whether any of it was fictitious or not, then he does not know whether he has a cause of action or not, and this becomes what" is properly called a mere fishing excursion, and discoveries "for such a purpose the courts have invariably condemned (Phelps v. Platt, 54 Barb. 557 ; Woods v. De Figaniere, 25 How. 522 ; Mott v. Consumers’ Ice Co., 2 Abb. N. C. 143 ).
III. The discovery is asked for simply to enable the plaintiff to prepare his complaint. To succeed, he must satisfy the court, that the discovery is necessary for that purpose. It is not sufficient that it may appear that the discovery would show facts material as evidence on the trial. If the plaintiff desires a discovery for the latter purpose, he must apply for it after issue joined (Gelston v. Marshall, 6 How.
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398 ; Mora v. McCredy, 2 Bos. 669 ; Thompson v. Erie Ry. Co., 9 Abb. N. S. 230).
Beltz & Large, for respondent.

The order appealed from that granted an inspection of certain agreements can be sustained only if the petition showed that the inspection was necessary to enable the plaintiff to draw his complaint.

The petition showed that the action was by a creditor, to set aside an assignment made by his judgment debtor to the defendant Williams, and to compel Williams to account for the property that had been assigned to him. It further alleged that such assignment was made with intent to defraud the plaintiff, and gives the particulars of the facts that would sufficiently show, if proven, that the assignment was fraudulent on the part of Williams. It, therefore, contains enough matter, without the aid of an inspection, to enable the plaintiff to frame properly a sufficient complaint.

It is not necessary that the allegations should be made upon knowledge; they may be made upon information and belief. As, therefore, the inspection was not necessary to, the plaintiff at this stage of the case, the order granting it should be reversed.

Order reversed with $10 costs and disbursements to be taxed. Motion for inspection denied without costs.

Truax and O’ Gorman, JJ., concurred.

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