Ferguson v. Bien

49 Misc. 450 | N.Y. App. Term. | 1906

Scott, J.

This is an appeal from an order of the City Court granting an inspection of plaintiff’s books. There are several reasons why the order should not have been made. One reason is that the defendants have been guilty of laches. The general rule is that an order for discovery will not be made after the cause has actually appeared on the day calendar. In the present case the cause had been once tried and sent back for a new trial. It was placed upon the day calendar for re-trial, upon a day selected and agreed upon by defendants, and had actually been called and marked “ ready ” before the application for an order to show cause was made. These laches are not satisfactorily excused and, of themselves, would have justified the denial of the motion. Mutual R. F. L. Assn. v. Patterson, 33 Misc. Rep. 572. Kor does it appear that there is any necessity for the examination. It is most obviously an attempt at what is known as a fishing excursion. The defendant Bien, in his petition, asserts that, upon the former trial, plaintiff contended that part of the money deducted, which defendants claimed was for interest, was credited on account for services rendered by plaintiff for defendant Kellis, and that plaintiff did not produce his books and claimed that the books showed no such entries. The petitioner then states as the necessity for the examination of plaintiff’s books—and this is the only necessity stated—that he should discover “ what services were rendered by plaintiff for defendant Kellis upon which any such claim should now be set up.” The defendant Kellis, for whom the petitioner Bien is attorney in this action, presumably knows what services, if any, were rendered to her by plaintiff; and, until her lack of knowledge is made to appear, no necessity is shown for an examination of the books. She makes no affidavit. The order is also too broad, covering a period long subsequent to the commencement of the action. This defect, if it were the only one, might be cured by a modification of the order. It is referred to merely as illustrative of the general character of the order. Its defects are beyond cure by modification. Hot only does the petitioner fail to excuse his obvious laches •and to disclose any necessity for the discovery, but he also fails to show any facts leading to the inference that the books contain any entries which would aid defendants. On the contrary, the inference is thát they do not.

The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Giegebich and Gbeenbatjm, JJ., concur.

Order reversed, with ten 'dollars costs and disbursements, and motion denied, with ten dollars costs.