53 How. Pr. 45 | The Superior Court of New York City | 1877
The plaintiffs, a street railway corporation, petition for an inspection and copy of certain books and papers of one of the defendant corporations, upon the averment contained in the petition that such an inspection will disclose certain specified facts material and necessary for the
After a careful examination of the petition, aided by the rules of the court and numerous authorities upon the point, to which reference was made by defendant’s counsel upon the argument, I am of opinion that the facts stated in the petition are insufficient to justify the presumption that any entries, correspondence or other documents relating to the subject-matter and tending to establish the plaintiffs’ cause of action exist. If the facts alleged in the complaint and put in issue by the answers are assumed to be true there is, perhaps, reasonable ground for - the inference that books and documents exist in the possession of the defendants which contain entries relating to the subject-matter, the legal effect of which would be to establish such facts, and particularly if the course of business of other, similar corporations indicates that such entries are ordinarily made under like circumstances. But we are not warranted in assuming the truth of the plaintiffs’ averments for the purpose of drawing from such assumption an inference in favor of the existence of evidence tending to support them. Such averments should have a more substantial basis than mere suspicion or conjecture ; and when a searching examination of an adversary’s books and papers is demanded it should be not merely for the purpose of ascertaining whether such averments are well founded, but because there is reasonable ground for the belief
Upon the ground, therefore, that under the former practice the averments of the petition do not, in my judgment, present a proper case for resorting to this onerous remedy of a search, and because, under existing provisions of law, the plaintiff has ample means of obtaining the proofs required, if they really exist, without subjecting himself to the imputation of fishing in his adversaries’ waters, I deny the motion, with ten dollars costs.