69 N.Y.S. 635 | N.Y. App. Div. | 1901
It does not- seem, to be in harmony with the provisions of the Code in regard to discovery, that in this proceeding the books of a corporation can be produced for the purpose of inspection by the adverse party. It is true that the 7th subdivision of section 872 of the Code speaks of an examination and inspection of books; but it is clear, in view of the other provisions of the Code in regard to the discovery of books and papers, that this was infelicitous language, and that all that the provision was intended for was to compel the production of the books of a corporation, which might be used in connection with the examination of a witness, who would be able to testify from the books, and who would not be able to thwart the purposes of the examination by claiming'that he could not give the information with out having his recollection refreshed by an inspection of the books.
We think, therefore, that tlie order should be modified by adding thereto the following words : “ Such production of the books being only for the purpose of refreshing the recollection of the witness and aiding his memory in the oral examination; such books not being produced for the purpose of examination or inspection by the plaintiffs counsel.” As so modified, the order should be affirmed, without costs.
Patterson, O’Brien and McLaughlin, JJ., concurred. 1
Order modified as directed in opinion, and as modified -affirmed, without costs.
