10 Abb. Pr. 340 | The Superior Court of New York City | 1860
—The action is to recover a quantity of corn, which it is alleged was the property of the plaintiff1, and to the possession of which he was entitled. That about the 1st of August, 1857, the defendants wrongfully possessed themselves of a part thereof, and, on the 2oth of August, of the remainder. A demand and refusal is stated. The answer set up an ownership in the firm of Starling, McCulloch & Co., and a right to hold the corn under them.
The petition states that the plaintiff resides in St. Louis, Missouri, and has in his possession, or under his control, books of account kept by him in the year 1857, and prior to the 26th of August, containing entries of his accounts and transactions with the firm of Starling, McCulloch & Co., and also entries in relation to the corn in question.
Also letters written to him by said Starling, McCulloch & Company, or one of the members of that firm, during the same year, and prior to the said 26th of August.
Also copies of letters written and sent by the plaintiff to the said Starling, McCulloch & Company, or one or other of the members of that firm, in the said year, and prior to the said 26th of August.
Also copies of telegraphic communications, which passed between him and said Starling, McCulloch & Company, or one or other of the members of that firm, in the said year, and prior to the said 26th day of August.
The petition then states that the petitioners are advised by their counsel, and verily believe, that a discovery of all the aforesaid entries in all books of account of the plaintiff, and of all the letters, and copies of letters, and telegraphic commnni
The statements of the petition, therefore, amount to this: The defendants believe the plaintiff has books, letters, or copies of letters, and telegraphic communications in his possession or control, which will, as the defendants believe, show some title in Starling, McCulloch & Company to the corn in question, and which they are advised by counsel are material and necessary for their defence on the trial. The substance is this, and nothing more: we believe your books and letters will help our defence, and, if they do, it is material for us that you should show them.
There is no allegation of knowledge, or of information from any one, as to the contents of one entry, or of one .letter, or communication being ¡mrtinent to the question in issue. It is difficult to imagine any statement more vague and indefinite than this.
In Hoyt a. American Exchange Bank (1 Duer, 602; S. C., 8 How. Pr. R., 89), a leading case in our own court, the discovery was directed to entries connected with the post-note, and Indiana bonds, the subject of controversy in the action. In Terry a. Hubei (12 N. Y. Leg. Obs., 146), I had occasion to examine the original petition in Hoyt a. American Exchange Bank, which is not stated in the report. The prayer was, that the defendants might give sworn copies of all entries in, any books, &c., in reference to, or showing where, under what circumstances, for what purpose, or consideration, and by and from what person or persons, the post-notes of the Morris Canal and Banking Company, and the seventy-three bonds of the State of Indiana, mentioned in the petition, were severally transferred or came into the possession of the defendants. The petition set forth that the defendants had books containing evidence relating to the merits of the cause, and to the facts aforesaid, a schedule of which books'were thereto annexed ; that the
The view of the subject taken by Mr. Justice Harris, in The Commercial Bank of Albany a. Dunham (13 How. Pr. R., 561), is applicable to this case. “ The plaintiffs specify no entry, or book even, which they propose to use as evidence upon the trial. They ask for license to search, at their own pleasure, all the books in which all the transactions of the defendants have been recorded for a period of eight years, in the expectation that, somewhere within the wide range, they may find some evidence that will aid them in sustaining the issue upon the trial.”
Justice Ingraham, in The People a. The Rector, &c., of Trinity Church (6 Abbott' Pr. R., 177), has expressed himself with equal decision against the right of a party to a discovery, upon allegations in a petition not more vague and indefinite than those in the present case.
In Davis a. Dunham (13 How. Pr. R., 425), the court, at general term, in the third district, held that the facts and circumstances must be stated sufficient to satisfy the court, or officer to whom the application is made, that there is reason to believe that the books, &c., which the party seeks to examine, do, in fact, contain material evidence.
There is another point equally decisive against the defendants, and to support the order appealed from. There is not, in the petition, a statement to show that the defendant does not possess the means of proving, by other competent evidence, the title or interest of the firm of Starling, McCulloch & Company, which will enable him to sustain his case. The opposing affidavit shows that one of the firm can be readily reached as a witness.
"We consider some allegation of this nature to be indispensable.
In Stalker a. Gaunt (12 N. Y. Leg. Obs., 132), the subject was much considered. It was observed, in the next place, discovery was the mere instrument for obtaining evidence to make a legal right available, without pronouncing a -decision on that right. (Hare on Discovery, p. 110.) Hence it was essential
“Mow, the foundation of such a bill was the inability of the party to establish his case without the discovery. It is said, generally, that it lies because he cannot otherwise prove the facts, or in aid of proof. The meaning of the last clause I take to be, that the aid is necessary in order to establish one or more facts in a series of facts which the party must prove, or to supply a partial defect in the testimony as to one or more of such facts, or as to the single fact on which the right depends. Whether the suit was in the Court of Chancery, or in another court, was immaterial as to the rules which governed discovery,”
I have carefully examined the following authorities: Seymour a. Seymour (4 Johns. Ch. R., 410); Gelston a. Hoyt (1 Johns. Ch. R., 543); Leggett a. Postley (2 Paige, 599); Newkirk a. Willett (2 Cai. Cas., 296); March a. Davidson (9 Paige, 580); Bass a. Bass (4 Hen. & Mumf., 465); Lowe a. Stebbins (9 Paige, 624); Vance a. Andrews (2 Barb. Ch. R., 370); Duvall a. Ross (2 Mumf., 290); Norwalk Railroad Co. a. Story (17 Conn., 213). While there are to be found some modifications of the rule, yet I apprehend that the rule stated in the explicit language of the chancellor, remains to this day substantially the doctrine upon the subject. “ If a bill seeks discovery in aid of the jurisdiction of a court of law, it ought to appear that such aid is required. It is not denied, in this case, that every fact material to the defence at law, can .be proved by the ordinary means at law, without resorting to the aid of this court. I should presume, from the bill, that every material fact respecting the ownership of the vessel could be established without coming to this court; and such trials are not to be delayed, and discoveries required, when the necessity of such delay and discovery is not made to appear.” (Gelston a. Hoyt, 1 Johns. Ch. R., 546.)
The power, under the Code, to examine parties as witnesses, was then adverted to, and it was concluded:
The results in this case are fully approved of, and acted upon, by Mr. Justice Harris, in The Commercial Bank a. Dunham, before cited.
And, in McAllister a. Pond (15 How., 299; 6 Duer, 702), Mr. Justice Woodruff says: “ One of the first facts which should appear, on an application for the discovery of books or papers for the purpose of preparing for trial, is, that the applicant has not in his possession the same information, or if he has, that he has not the means of establishing, by other available proof, the contents of such books and papers.”
Again : “ It is not stated that the plaintiff cannot prove, without the production sought, every fact which is material to his case.”
We consider the present application to be entirely against settled rules, and that the order below ought to be affirmed; nor is there any thing in the case to justify our giving the party an opportunity to renew it.
This principle was further illustrated in the following cases. Gkax a. Ken-
Buckham, Cady fy Smales, for the motion.
Qeorge W. Parsons, opposed.
Hoffman, J.—The firm of Ely, Bowen & McConnell made a general assignment to the defendant, Kendall, of all their property, to pay their creditors pro rata.
The plaintiffs are among such creditors. They bring this action to remove him from his situation as assignee, and have a receiver appointed. The prayer for judgment is limited to this.
The members of the firm were, Henry 0. Bowen, special partner, and Henry G. Ely, Edward E. Bowen, and William H. McConnell, general partners.
A petition is now presented for a discovery of books and papers. The discovery is asked from Ely, of books and papers relating to the property and transaction of the firm of Ely, Clapp & Bowen. He swears that he has not the possession or control of any such books, but that they were delivered over to, and remain in possession of Kendall.
It is asked of the defendant, Henry C. Bowen, as to books, &c., connected with the business of the firm of Ely, Clapp & Bowen, and Ely, Bowen & McConnell, who also denies possession or control of such books, having only access to them as a partner.
The allegations of the complaint as to the misconduct of Kendall'in relation to which the books may furnish evidence, are' mainly these :
I. That he has employed others to attend to the business, instead of doing it himself, and has allowed them to draw large sums of money out of the trust-funds at their discretion.
II. That the charge of $15,000 for expenses was needlessly incurred.
III. That the firm of Ely, Bowen & McConnell carried on business at the store No. 324 Broadway, which store, and lease thereof, belonged to Bowen, McNamee & Co., holding it at a yearly rent of $13,000, for a term of five years, unexpired. A series of transactions between the two firms, with the consent of the assignee, is then stated, the effect of which was to create an unjust and unlawful credit of $20,000, in favor of Bowen, McNamee & Co., upon which they have received a dividend. There is nothing in the petition, complaint, or affidavits, to show that this transaction cannot be fully established by testimony independently of the hooks; indeed, there is nothing to show that the hooks would even assist in ascertaining the facts. Taking the admissions and statements in Kendall’s answer, it is quite plain that the plaintiffs have other means, if any exist at all, besides the books, to make out this part of his case.
IV. That previous to the formation of the firm of Ely, Bowen & McConnell, the defendants, Ely and Edward E. Bowen, were partners in a firm of Ely, Clapp & Bowen, in which Henry C. Bowen was a special partner, having contributed $20,000 as capital, which firm ceased to do business on the 1st of January, 1856. The stock of merchandise was sold to Ely, Bowen & McConnell, on the 1st of January,
V. That immediately before the assignment, Ely, Bowen & McConnell, in pursuance of an arrangement made by Ely and Henry C. Bowen, passed over to Bowen, McNamee & Co., about twenty-nine thousand dollars’ worth of merchandise, and about seventy-two thousand dollars’ worth of promissory notes, and mercantile securities, with the design and intent to prefer that firm over the other creditors of said Ely, Bowen & McConnell. The defendant was culpable in not recovering this property. The answer given under the last head applies to this case. Besides, the facts are sufficiently admitted in the answers to raise the question. The details can be proven, if necessary, without the books.
VI. That after the assignment, the defendant Ely retained a large amount of promissory notes belonging to Ely, Bowen & McConnell, which ought to have been taken possession of by the assignee ; that he disposed of the proceeds thereof for his own use, and in payment of creditors whom he had promised to prefer. It is not shown that this matter cannot readily be proven without the books.
There are a few other matters stated in the complaint, not of moment on this application.
I have gone carefully over the complaint and petition. I cannot see reasonable ground for any discovery within the rules of the court, except as to the expenses of $15,000, and the allowances to Ely and Edward H. Bowen, McConnell, and the bookkeeper.
The only order that can be made is, that the defendant, Kendall, furnish to the plaintiffs attorney, in ten days from service of copy of this order, sworn copies of all accounts and entries in any books or papers in his possession, or under his control, relative to his expenditure in relation to the said assigned estate ; and also in relation to the money allowed the defendants, Henry G. Ely, Edward H. Bowen, and William H. McConnell, and to the bookkeeper of the firm, out of the trust-funds which have come to his possession, or under his control.
Order accordingly.
' Lynch a. Henderson (Supreme Court, First District, Special Term, March, 1859). This action was for libel, and plaintiff moved for an order for delivery of a copy of a printed book to him, to enable him to prepare his complaint.
Without expressing any opinion as to the propriety of compelling a defendant in an action for a libel to deliver to the plaintiff a copy of the libel, I am clearly of the opinion that this motion should not be granted, because :
1. The affidavits do not show what is stated in the book of which the plaintiff seeks a discovery, and, therefore, the Court cannot decide- whether it is material or not.
2. Because the affidavits do not specify any particular information desired, so that the Court could order a sworn copy to be delivered.
3. Because the plaintiff is not entitled to the whole book, but only to the particular article on which his action is founded.
Motion denied, without prejudice to another motion, on payment of $10 costs.