176 A.D. 840 | N.Y. App. Div. | 1917
The order for the examination is irregular in that while it is therein recited that the justice who made it was satisfied that an examination of the defendant and of one Ginsberg, its president, and Leaf, its secretary, “adverse witnesses,” was necessary to enable plaintiff to show the amount of money which he claims to be entitled to recover, no examination of the defendant is ordered. The order authorizes an examination of its said president and secretary; and they are directed to produce all books of the company showing or containing entries with respect to the amount of moneys received by
There is difficulty with respect to that part of the order requiring the production of the books, for since the defendant’s place of business is in Philadelphia it is to be inferred that its books are there, and there is no evidence that they are here. We have sustained an order for the examination of the books of a foreign corporation invoking the jurisdiction of this court as a plaintiff (National. Distilling Co. v. Van Emden, 120 App. Div. 746) and an order for the production of the books of a foreign corporation defendant in an action on a contract made in this State by which plaintiff was entitled to an inspection of such books (Sullivan v. Byan-Parker Const. Co., No. 1, 148 App. Div. 243); but with those exceptions we have not attempted to exercise jurisdiction to require a foreign corporation not doing business here to bring from without the State and produce
Without deciding whether it would be within the jurisdiction of the justice or of the court to make such an order in instances other than those in which such jurisdiction has been heretofore exercised, we are of opinion that the plaintiff should be left to his remedy by commission to obtain proof of the entries in defendant’s books.
It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, without costs, to the extent of modifying the order for the examination so as to provide for the examination of the defendant through its president and secretary, naming them, and by eliminating the provisions thereof requiring the production of books and papers.
Clarke, P. J., Dowling, Smith and Page, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs, to the extent stated in opinion. Order to be settled on notice.