De Bary v. Stanley

48 How. Pr. 349 | New York Court of Common Pleas | 1874

Robinson, J.

— The mode of obtaining inspection of an adversary’s books and papers is pointed out by the Revised Statutes (R. S., part 3, ch. 1, tit. 3) and the rules (Rules 13, 19, 20, 22).

The mode of obtaining the inspection and copy of a particular paper is pointed out by section 288 of the Code. The examination of a party before trial, under sections 190 and 191 of the Code and Rule 21, is wholly distinct from the foregoing remedies, and does not include any more than it supersedes them. The case of Bonesteel agt. Lynde (3 How., 226) does not sustain the order, for that was a subpoena, duces tecum, served upon a party upon the trial. In the case of People agt. Dyckman (24 How., 322) the point was not directly involved, and the case was subsequently overruled. The better authority is contained in Hauseman agt. Sterling (61 Barb., 347) and Woods agt. Defiganiere (16 Abb., 159).

Order appealed from reversed.

Daly, C. J., and J. F. Daly, J., concurred.