67 N.Y.S. 267 | N.Y. App. Div. | 1900
The right of a partner to a disclosure of partnership books rests upon entirely different principles than the rights of third persons to have a disclosure, it being usual almost as matter of course to grant such examination and inspection to a partner. (Kelly v. Eckford, 5 Paige, 548; Stébbins v. Harmon, 17 Hun, 445.) And it is only where it can be seen that the application is made in bad faith that he will be refused the privilege. The fact that the partnership is dissolved does not change the rule, the courts recognizing the right of a former partner to have access to the books at all reasonable times. (Bearns v. Burras, 86 Hun, 258.)
It is conceded that a partnership existed here between the parties; that it was dissolved, and that during its existence the books were in the exclusive custody and control of the defendant; and it is thus apparent, that without opportunity for examination the plaintiff cannot obtain the facts necessary to prove the allegations of the com
It was suggested at Special Term that the evidence desired could be obtained oh the trial by a subpoena duces tecum. Although this is the remedy that would ordinarily be accorded to a third person who sought to examine the firm’s books, it has no application where one of the partners is. asking for an opportunity to see and examine what are really his own books. ¡Nor do we think the further objection that a casual inspection was on one occasion granted the plaintiff, is a sufficient reason for refusing his request, because, apart from the fact appearing that he was unable on that occasion to get. the information desired, he is entitled at all reasonable times to an examination of the partnership books. They belong to him just as much as to the defendant, and the fact that the latter has taken control and possession of them is not sufficient ground for preventing the plaintiff, within proper bounds, having access to them.
Here the plaintiff wished to have the books deposited in the office of the attorneys for the defendant —a disposition which, without; their consent, the court could not make. The fact, however, that the place designated was not proper or suitable, is not sufficient cause for denying an examination at some other place, either by requiring the deposit of the books in court or by the parties agreeing upon some place where, without injury to the defendant ■— if these same books, are still being used by him — the plaintiff could obtain the examination asked for. If the parties cannot agree as to the place, it will be fixed by the court on the settlement of the order.
: We think the order shoiild, accordingly, be reversed, with ten dollars costs and. disbursements, and the motion granted, with ten dollars costs to abide the event.
Van ¡Brunt, P. J., ¡Rumsey, Patterson and' McLaughlin, JJ... concurred;
Order reversed, with ten dollars costs and disbursements, and motion '.granted, with ten dollars costs to abide event.
