Walden v. Davison — 11 N.Y. 65

Majority

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*Walden vs. Davison.

Headnote

Notice to the attorney of a defendant to produce on the trial a certain letter written by the plaintiff to the defendant, concerning an execution which was produced on a former trial in the same cause, “ and all other papers in your custody or power relating to the matter in controversy in this cause,” was held to be sufficiently explicit to apprise the attorney that the execution was one of the papers which he was called upon and expected to produce, especially when it was shown that on such former trial the letter and execution had been produced by the defendant’s attorney himself, and he must have known that it was the principal paper wanted.

This was an action of assumpsit, tried at the Allegany circuit in September, 1831, before the Hon. Addison Gardiner, one of the circuit judges.

The suit was brought to recover money collected by Joseph Wilson, a deputy of the defendant, who, in 1820, was sheriff of Allegany, on an execution in favor of the plaintiff against Moses Van Campen. The judgment against Van Campen was proved, and a letter from Wilson to the plaintiff was read, dated 11th October, 1820, in which he says he has received a fi.fa. in the suit

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of the plaintiff against Van Campen, directed to the sheriff of Allegany on the outside, and in the body of the writ directed to the sheriff of Cattaraugus, and that, with the advice of the plaintiff, he would alter it and proceed to the collection of the money. The plaintiff then offered to read in evidence a letter from him to Wilson, bearing date 31st October, 1820, (in answer to Wilson’s letter,) covering a testatum execution in the same cause ; and, to authorize the introduction of the evidence, proved that Wilson told a witness that he had received a letter from the plaintiff with another fi. fa.; and also proved that on a former trial of this cause, the letter in question and a second execution were produced in evidence by the attorney of the defendant; that at the close of the trial, the defendant’s attorney took the letter and execution, for the purpose of incorporating them into a case made for the purpose of presenting to the court on a motion for a new trial; *and that notice to produce papers had been given to the attorney for the defendant, by which he was required to produce, on the trial, “ a certain letter written by the plaintiff (referring to the title of the cause) to Joseph Wilson, concerning an execution in the above case, which was produced on the former trial, and all other payers in your custody or power relating to the matter in controversy in this cause, or inferior evidence will be given of their contents.” On this evidence, the attorney for the defendant was called on to produce the execution, who declined to do so on the ground that it was not in his possession or power. The plaintiff then offered to prove the execution by parol, which was objected to on the ground that the notice did not require the production of the execution. The judge decided that the notice was not sufficient to compel the attorney to produce the execution, or to authorize the introduction of parol evidence of its contents. After some further efforts to establish a cause of action, the plaintiff was nonsuited. A motion was now made to set aside the nonsuit.

M. T. Reynolds, for the plaintiff.

J. A. Spencer, for the defendant.

By the Court,

The judge erred in rejecting secondary evidence of the execution sent to the deputy on the 31st October, 1820. The notice to the defendant’s attorney was, under the circumstances of the case, sufficiently specific to apprise him that this execution was one of the papers which he was called upon and expected to produce. The notice required him to produce a letter written by the plaintiff to Wilson, in relation to a certain execution in this cause which was produced on the former trial, and also all other papers in his custody or power relating to the matter in controversy in this cause. The defendant’s attorney himself introduced the letter and execution in evidence on the former trial, and when the trial was closed, took them into his possession for the purpose of making a case, in order to move for a new trial. He knew then that his execution was a paper relating to the matter in controversy in this cause ; he did not pretend that *he was misled by the general terms of the notice ; that he was not apprised by it that the execution was wanted : but his excuse for not producing it was, that it was not in his possession or under his control.

Conceding that a notice in general terms to produce all papers in the possession or under the control of a party, relating to a particular cause or controversy, would in general be held to be of no force or effect, still I think the particular circumstances of this case to which I have adverted, would take it out of the operation of such rule. It is true, the plaintiff might have made his notice more specific, but if it was sufficiently specific under the circumstances of the case fairly to apprise the party to whom it was given that this particular paper was wanted, the object of a notice was accomplished. I think the defendant’s attorney could not for a moment have doubted that the execution was

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the principal paper or document which the plaintiff wished and expected him to produce under the notice. Evidence of its contents should therefore have been received, and the judge erred in rejecting it. On this ground a new trial must be granted.

New trial granted.