Husson v. Fox

15 Abb. Pr. 464 | N.Y. Sup. Ct. | 1863

Sutherland, P, J.

By the order appealed from, the defendant was ordered to produce and discover all of his books of account, containing any of the accounts of the plaintiff with the defendant, from October 1, 1843, to November 1, 1854, and also the sales-book, journals, or day-book, showing the original entries of articles sold to plaintiff during said period; also the books of account showing the borrowed and lent money between the plaintiff and defendant during said period, and to permit the plaintiff to inspect the said books of account, and to furnish the plaintiff with sworn copies of the same, and of the entries therein, or permit the plaintiff to take copies thereof.

It appears to me that this broad order was granted without sufficient consideration.

The plaintiff states in his petition, that he lent to the defendant and received from him various sums of money, amounting in the aggregate to several thousand dollars, prior to June 26th, 1847, that he has omitted to charge the defendant in his journal, and in his bill of particulars, with some one or more of the sums of money lent him prior to June 26th, 1847, and “ that he verily believes the said books of said defendant contain the entry or entries of such loans.”

It is plain that the plaintiff had no knowledge or recollection of any particular sum or sums so loaned, and could not specify one or more. He states his belief that defendant’s books contain the entry or entries of such loans, but he does not state facts and circumstances showing reasonable grounds for such belief. He had no right to an order which would enable him to turn over the leaves of the defendant’s books, to see whether he could not discover something which would help his case. (Davis a. Dunham, 13 How. Pr., 425; Hoyt a. American Exchange Bank, 1 Duer, 652; S. C., 8 How. Pr., 89.) These remarks apply also to the statements in the plaintiff’s petition that the charges in the defendant’s bill of particulars for clothing furnished to the plaintiff will be found, on an inspection of the defendant’s books, to be higher or larger than the original entries or charges in the books, and that the production and inspection of the defendant’s books will show discrepancies between the defendant’s bill of particulars and the accounts in the books.

I do not think, therefore, that the plaintiff’s petition unanswered would have authorized the order made. But the petition was answered, and I think fully met by the defendant’s papers. All the statements in the petition as the reasons or grounds for the discovery, appear to have been fully met by the papers read in opposition to the motion.

I think the order appealed from should be reversed, with $10 costs.

Ingeaham and Cleeke, JJ., concurred.