4 Abb. Pr. 233 | N.Y. Sup. Ct. | 1857
—This is a petition by defendant for discovery of a charter party on which this action is brought. The plaintiff’s answer is, that to the best of his knowledge and belief it was delivered to defendant; and positively, that it is not in his possession or under his control, and has not been since a prior motion to this effect was made which was denied.
Ex necessitate, this must be a sufficient reason for refusing the order. The petition and answer are each respectively evidence for the purposes of the motion, and unless this evidence of the responsive affidavit is controverted, it must be taken to be true. This statement is not denied by any thing in the petition, and if it were, without other evidence, perhaps the answer would have to control. On the whole, the evidence presented on the motion, pro and con, shows that the paper is not in the possession or under the control of plaintiff.
It is urged on behalf of the motion, that there is a suspicious improbability in the denial by plaintiff of the possession or control of the paper on which he brings his suit; and it is further urged that the verification of the complaint by the attorney, in which he states that his information is derived partly from the inspection of the charter party, is inconsistent with the answer of plaintiff, to the petition, or at least throws doubt on the truth of his denial. This may all be. They do to some extent cast suspicion; but to authorize the order asked, they must do more than suggest doubts or awaken the probability of the truth of the denials—they must disprove them. The petitioner is the moving party. The burden is on him of proving the ability of the plaintiff to discover or show to him the papers. He has relied on the general presumption (reasonable and proper) that the plaintiff has the paper on which he brings his action, and which moreover belongs to him. His evidence on this point was sufficient prima facie, and the plaintiff was put to a denial and disproof of it as his defence to the motion. This attitude he has assumed, and met the defendant on the issue of his power to make the discovery asked. He must know; and he testifies therefore with actual knowledge. The weight of evidence, instead of being on the part of the moving party, is against him. If the paper be, as is suggested, in the hands of some other party who is his agent for the purposes of this suit, still, as he denies that it is under his control, that party must hold it not
