152 Misc. 774 | N.Y. Sur. Ct. | 1934
This motion is made for the examination of Ray L Erb as an adverse party before trial, pursuant to sections 288 and 292 of the Civil Practice Act and rule 122 of the Rules of Civil Practice, and, in so far as it relates to a discovery and inspection of documents, is made pursuant to section 324 of the Civil Practice Act and rule 140 of the Rules of Civil Practice.
It is proper to join the application for examination and the application for inspection and discovery of documents in the same motion. This has been done in the instant case.- (Fey v. Wisser, 206 App. Div. 520 [2d Dept.].)
The issues to come before the court relate to certain claims filed against the estate. The claim of fraud is involved, as developed on the hearing before me, and under the circumstances disclosed, to a certain extent, the order should be made as a matter of course. The documents must relate to the merits of the action or of the defense therein. The provisions of section 324 are restricted to inspection and discovery of documents to be used in evidence in support of the cause of action or defense. (Bergelt v. Roberts, 144 Misc. 832, 837.)
Bencoe v. McDonnell (210 App. Div. 123 [2d Dept.]), affirming the opinion of Justice Taylor, wherein the court said that the courts have intimated their reluctance to grant and have uniformly denied wholesale inspection. In this case an inspection was denied on the ground that the papers sought could be made subject to a subpoena duces tecum.
The issue to be tried relates to a rescission of a contract pursuant to the laws of California. The rescission is attacked by the applicant herein. The executors have the affirmative defense and carry the burden of proof to show that a legal rescission of the contract has been made. (Matter of Fee, 151 Misc. 410, opinion by this court, dated May 4, 1934.)
“ Except where a contrary intent is expressed in, or plainly implied from the context of this act, a provision of law or of rules,
In the exercise of sound discretion, the court has passed over the objection made by the executors regarding the failure of the petition to set out precise reasons and the further fact that the petition for discovery is made upon the attorney’s own affidavit.
With regard to the examination before trial the claimants may examine Ray L. Erb upon the following matters, as set out in the following subdivisions of paragraph 7, beginning on page 3 of the petition of Joseph Larocque, attorney for claimants, verified April 26, 1934: Subdivisions 1, 2, 4 (a), (b) and (c), 5, 7, 8, 9, 10, 11, 12 and 13 relating to the negotiations leading to the execution of the so-called rescission agreement.
The said Erb may also be examined as to: Subdivisions 3, 6, 14, 15, 16 and 17. The application for examination as to subdivisions 18 and 19 is denied.
As to the right of disclosure of documents, books and communications, the items set forth in the following subdivisions may be disclosed and inspected: Subdivisions 1, 4, 9,10,11,12 and 13. As to the items set forth in subdivisions 2, 3, 5, 6, 7 and 8 the application is denied. The accounts mentioned in subdivision 3 are of necessity public records and can be secured by the applicant.
The examination of Ray L. Erb and the inspection and discovery of documents will proceed upon five days’ notice before Henry R. Barrett, attorney at law, with offices at the city of White Plains, as referee, pursuant to rule 142 of the Rules of Civil Practice.
Submit order on notice.