Hyperlawhypertext legal database Levey v. N. Y. Central & Hudson River R. R. 53 N.Y. Super. Ct. 263

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Levey v. N. Y. Central & Hudson River R. R.

53 N.Y. Super. Ct. 263 21 Jones & S. 263 Court N.Y. Super. Ct. Decision date 1886-05-03 English

Contents

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AUGUSTUS A. LEVEY, Appellant, v. THE N. Y. CENTRAL & HUDSON RIVER R. R. CO., Respondent.

Headnote

Order for examination and production of writing, when it is in substance an order for discovery, it must be applied for under § 805. Defendant corporation, a discovery by cannot be had under subdivision 7 of § 872.
An order requiring an officer of a defendant corporation to appear and be examined touching certain writings, and to produce such writings, and further requiring the corporation and such officer, to wit, individually and in his official capacity, to produce and discover such writings, and give the plaintiff an inspection or copy,or permission to copy such writings, and to deposit such writings with the judge who made the order, by a day therein named, there to remain for thirty days, is substantially an order for discovery of documents,and must be applied for under section 805, upon petition and order to show cause as required by that section.
It does not fall within subdivision 7 of section 872, relative to depositions. The production referred to in that subdivision is ancillary to the oral examination of a person as a witness, generally, in an action commenced or expected to be brought.
Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.
Decided May 3, 1886.
Appeal by plaintiff from an order vacating order obtained by plaintiff, in examination of officer of defendant, as claimed by plaintiff, and for production and inspection of certain papers.
The order required that the defendant and Edward W. Rossiter, its treasurer, appear before a judge at chambers, on November 21, 1885, “then and there to be examined touching certain proposals in writing contained in letters written by one Clarence Levey to the defendant,” that were particularly described, and that the defendant and said Rossiter have, at the time and place before named, the aforesaid letters and certain vouchers of four classes, “ and that the said defendant corporation and the said Rossiter, ■ individually and as treasurer, then and
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there produce and discover the said letter and vouchers . . and then and there give to the plaintiff herein an inspec tion or copy, or permission to take a copy of any or all of the said letters and vouchers, and for such purposes . . produce and deposit with said judge at his chambers, &c., on or before the day first named, the said letters and vouchers there to remain for the period of thirty days from, &c.”
Wingate & Cullen, attorneys, and George W. Wingate, of counsel for appellant,
argue—I. Theorder for the defendant’s examination could not be properly vacated, as it was in the exact form specifically prescribed by subd. 7, § 872, Code Civ. Pro., as that subdivision was amended by chapter 536, Laws 1880, and as that section refers to a proceeding founded upon an affidavit, not a petition. That the order in question was properly granted, is expressly adjudicated by the general term of the supreme court in the first department in Frothingham v. Broadway & 7th Av. R. R. Co.
II. The amendment of 1880 to the section in question was passed for the express purpose of uniting, in the case of a corporation, a proceeding for the examination of its officers or directors with a discovery of its papers.
III. The subdivision in question was inserted by the amendment of 1880, in consequence of the decisions in Boorman v. Atlantic & Pacific R. R. Co. ( 17 Hun, 555 ; 78 N. Y. 599 ), deciding that directors of a corporation were not parties, and therefore could not be examined under § 870 (Reichmann v. Manhattan Co., 26 Hun, 433 ). The words “ examination or inspection,” make the right co-extensive with what could be obtained in equity by a bill of discovery (Townsend v. Lawrence, 9 Wend. 458 ; Wallis v. Murray, 4 Cow. 101 ; Lawrence v. Ocean Ins. Co., 11 Johns. 245 ; General Rule of Practice 85). Under the former practice discovery was of a dual nature ; first, to discover the existence of written evidence assumed or believed to be in the possession of the
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adverse party ; and then, if its existence and the possession of it was not denied, a discovery of its concents (Pollock on Courts, 8).
IV. The intention and effect of subd. 7, § 872, being as above shown to consolidate into one proceeding “examination before trial ” and “ discovery ” quoad corporations, it consequently operated as a repeal pro tanto of § 803 (which was taken from 2 R. S. 199, § 21, and was chapter 38 of the Laws of 1841), so far at least (in the cases of corporations) as §§ 803 and 872 are inconsistent (Heckman v. Pinkney, 81 N. Y. 211 ; People ex rel., Eden Musee Co. v. Carr, 66 Hun, 488 ; People ex rel., Ross v. Brooklyn, 69 N. Y. 605 ; Excelsior Petroleum Co. v. Lacey, 63 Ib. 422 ; Potter’s Dwarris on Statutes, 115, 154-6 ; Vattel’s Maxims, No. 40 ; Dexter & Limerick Plank Road Co. v. Allen, 16 Barb. 15 ; Daviess v. Fairbairn, 3 How. [U. S.] 636 ; Burdick v. Phillips, 17 Week. Dig. 440; Isaacs v. Isaacs, 10 Daly, 306 ).
V. It is therefore clear that but one order is contemplated to be made in a case coming under the provisions of subd. 7, § 872, Code Civ. Pro., which shall include both remedies precisely in the form that the order vacated was drawn (Lefferts v. Brampton, 24 How. Pr. 263 ).
VI. Though no case has been found in whicn any interpretation of the expression “ examination or inspection ” contained in subd. 7 of § 872, is directly given, yet in the case of a statute where the right of “examination ” was given to stockholders under certain circumstances (1 R. S. 601, § 1), it was held that this right included not merely an inspection of the books, but also the right to take memoranda or copies of them. And the court said, “ if submitted for examination it must be so much under his control that he can know, remember and report as to its contents ” (Brouwer v. Cotheal, 10 Barb. 216 ).
VII. McGuffin v. Dinsmore ( 4 Abb. N. C. 244 ; S. C., 1 Civ. Pro. R. 185), has no application, having been decided March, 1878, two years prior to the amendment to subd. 7, § 872, now under consideration. Black v. Curry
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(1 Civ. Pro. R. 193), 'was with reference to the examination of an individual before trial, in which case, sub.. 7, § 872, did not apply. Consequently, this decision has no application to a case like the present, for the examination of a corporation only, the statute making a distinction between a proceeding against it and against an individual.
Frank Loomis, attorney, and of counsel for respondent,
argued :—The application for a discovery and inspection is assumed to have been founded on §§ 803-809, Code Civ. Pro. and for the attendance and examination of the witness, upon §§ 870-886. Section 805 provides that the moving party must present a petition praying for the discovery or inspection, and verified by affidavit, upon which an order may be made directing 'the party against whom the discovery or inspection is sought to allow it, or, in default thereof, to show cause before the court, at a time and place and upon a notice therein specified, why the prayer of the petition should not be granted. ' Section 807 provides that upon the return of the order to show cause the court may make such an order with respect to the discovery or inspection prayed for, as justice requires. Section 806 prescribes that the adverse party may obtain the vacation of the order upon affidavits. As the plaintiff did not pursue, .in obtaining the order for discovery and inspection, the course prescribed by the statute, the order was properly vacated. The moving party cannot have a discovery and inspection of the books) See., of the adverse party on an order for the examination of such adverse party before trial. He must pursue separately the methods provided by §§ 803-809 (Martin v. Spofford, 3 Abb. N. C. 125 ; Hausman v. Sterling, 61 Barb. 347 ).

The judge below held that the order was substantially for the discovery of documents under section 805 of the Code of Civil Procedure and that it should be vacated, as it was not made upon petition and order to show cause as required by that section.

p. 267
The learned counsel for the appellant argues, that in a case like this, where the party sought to be examined is a corporation, the seventh subdivision of section 872 provides for a discovery of papers, as well as for an examination of a party as a witness in connection with the papers produced. The purpose and end of sections 872, and those before and after it, is to procure a deposition which may be filed, etc. The order to be made is to direct the examination of such persons and the production of such books and papers. There is no language which clearly indicates that the sections provide for the discovery of the papers, as an independent proceeding, and such a discovery sufficient for all purposes of justice, yet shaped to protect the rights of the defendant, is specifically provided in sections 805, et seq. The section 872, by its phrases of examination and inspection of the contents of books and papers and the production, does not intend an alternative to the oral examination of the witness, and not connected with the latter, but means something depending upon or ancillary to oral examination. It must be held that the section contemplates not an independent discovery, but an oral examination of a witness, which will involve the necessity of producing a paper as to which, or the contents of which, he can give evidence. It is true that some part of the order, taken by itself, might refer only to such an oral examination. The main feature, however, is the deposit of papers with the judge at chambers, to remain with him for thirty days, and all the rest is subordinate to this.

Order affirmed, with $10 costs, and disbursements to be taxed

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