72 N.Y.S. 488 | N.Y. App. Div. | 1901
The summons in this action having been served without a complaint, the plaintiff made this application, which was to compel a
The defendant, in his answering affidavit, alleged that on Hay 21, 1900, the deceased told the defendant to go to the Fifth Avenue Safe Deposit Company and sign the book, and thereupon the defendant did go to the said company and sign said book as the owner thereof, and in the evening of the same day the deceased handed the defendant two keys of said vault and stated that the
I know of no authority to justify the granting of this application. The facts stated do not bring the case within sections 803-805 of the Code, relating to a discovery, or of rule 14 of the General Rules of Practice. By the Code, provision is made for the discovery of books, documents or other papers. There is nothing in these provisions that authorizes the court to order a discovery of personal property in the possession of an adverse party or of a third person not a party to the action. By subdivision 3 of rule 14 of the General Rules of Practice, provision is made whereby a party may be compelled to make discovery of a book, document, record or property in his possession or under 1ns control, upon its appearing to the satisfaction of the court that such book, document, record or property is material to the decision of the action or some motion or application therein, or is competent evidence in the case. No fact is stated to show that any article of property in the possession of the defendant or of the safe deposit company is necessary as evidence in this case, the application being based upon the inability of the plaintiff to properly describe the contents of this vault in her complaint. The proceeding is not and does not pretend to be for the purpose of procuring evidence, but it is sought to procure information as to the property which the plaintiff’s testator owned at the time of his death, in order that the plaintiff may maintain an action to recover such property. We are referred to no provision of the Code which authorizes such an application. , Such authority cannot be based upon the inherent power of the court, as it is a power which, so far as I can ascertain, has never been claimed or exercised. In every case in which an application has been made for an order requiring the examination of personal property in "the hands of an adverse party, such application has been denied. (Cooke v. Lalance Grojean Mfg. Co., 29 Hun, 641; Ansen v. Tuska, 1 Robt. 663; Kennedy v. Nichols, 33 Misc. Rep. 726; S. C., 68 N. Y. Supp. 1053.)
It follows that there was no authority' for an order such as was
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.