210 A.D. 123 | N.Y. App. Div. | 1924
Kelly, P. J., Rich, Jaycox, Manning and Kapper, JJ., concur.
The following is the opinion of the court below:
An accounting before the referee, by the defendants, has been directed in the interlocutory decree. The account has been filed; in effect it constitutes a pleading by the defendants as to the state of the account. The plaintiff has not as yet filed objections thereto; in other words, issue has not been joined as to the same. He now applies for a very general inspection of records, books and documents of the defendants, pertaining to plaintiff’s past transactions with them. The courts have pointedly intimated their reluctance to
From the moving papers the evidence sought by this requested inspection cannot be said to be unknown to the plaintiff; and from a reading of the voluminous affidavits on both sides I believe that in the exercise of a sound discretion the application should not be granted. The motion is denied, but without costs, and without prejudice (a) to the plaintiff’s right to compel the production of books and papers by a subpoena duces tecum before the referee, at an examination of the defendants or their subordinates before that official (See Seligsberg v. Schepp, supra); further .(b) without prejudice to a renewal of this application in the event that it shall hereafter be made to appear (as I hold that it is not now made to appear) that the examination of particular books and papers is necessary, upon which renewed application, if made, the court may then judge as to the necessity for the examination of such books and papers, and give directions as to its scope (Hay v. Republic Trading Co., 184 App. Div. 537, 538); and further (c) without prejudice to an application for the examination of the defendants by the plaintiff before the trial which is to be had before the referee, upon which the books and papers may be produced by a subpoena duces tecum as required. (Rheims v. Bender, 185 App. Div. 61, 62.) Ordered accordingly. Settle order on notice.