| N.Y. App. Div. | Mar 23, 1900
Dissenting Opinion
I dissent. There is not a particle of evidence before the court that the defendants, or any of them, ever
O’BRIEN, J., concurs.
Lead Opinion
A motion for a discovery, made under general rule of practice No. 14, and section 808 et seq., of the Code of Civil Procedure, is an ordinary proceeding in an action; and the petition and the notice upon which it is begun must be served upon the attorney for the parties, if they have appeared by attorney. Code, § 799; Rossner v. Association, 20 Hun, 182. These papers were so served, and the defendants, having generally appeared in the action, and having appeared upon the motion without objection, are not now in a situation to complain that they are not before the court on this motion. The petition shows quite clearly that the paper sought for is necessary, and that it was in the possession of the three defendants, or had been delivered to their' attorney, in New Jersey, and it must still be deemed to be under their control. The case was therefore precisely within subdivision 3 of general rule 14. To excuse themselves, therefore, from the delivery of the paper, it devolved upon the defendants to show what they did with it or what has become of it, and that it is not still under their control. Perrow v. Lindsay, 52 Hun, 115, 4 N. Y. Supp. 795. No effort was made to give any such information to the court. On the contrary, the affidavit made by the only defendant who sees fit to answer is evasive, and it does not deny the facts stated in the petition, or give any reason to believe that the will is not now in the possession and under the control of the party to whom it was delivered. No reason was shown, therefore, why the plaintiff should not be entitled to the relief which the court gave him; and the order must therefore be' affirmed, with $10 costs and disbursements.
BARRETT-and INGRAHAM, JJ., concur.