How., 280; 2 C. R., 148. See also, as to a suit by the people, The People vs. Rector, &c., of Trinity Church, 6 Abb., 177.

Nor is it essential for the party to make a negative allegation, that the documents required are not in his own possession. It is enough for him to show what the statute requires, that they are in the possession or under the control of the adverse party; and, in this respect, it is sufficient if he shows a state of facts which satisfies the court or officer that the party, against whom the application is made, has the ability to comply with the order for discovery. Exchange Bank vs. Monteath, supra.

Sufficient must be stated, however, to satisfy the court that in reality the discovery is necessary, and that the party applying has not in his own possession the information applied for, or, if he has, then that he has not the means of establishing the facts of which he is so informed, by other available proof, without compelling the adverse party to furnish it. McAllister vs. Pond, 6 Duer, 702; 15 How., 299; Charlick vs. Flushing Railroad Company, 10 Abb., 130; Pegram vs. Carson, 10 Abb., 340; 18 How., 519; Stalker vs. Gaunt, 12 L. O., 132. See also, as to an application made unnecessarily, and seemingly in bad faith, Van Zandt vs. Cobb, 12 How., 544.

The notice of motion must, of course, be based upon the case as hown on the moving papers, and must ask for the specific relief which that case as shown will warrant, never omitting the usual general demand at the conclusion. Any petition or affidavit, on which the notion is grounded, must of course be served with the notice. The pleadings should in all cases be referred to on that document.

(a.) OPPOSITION TO MOTION.

The opposing party, if he impeaches the statements of the applicant, by the allegation of counter-facts, must bring them forward by affidavit, in the usual manner. If he merely relies on defects patent on the face of the moving papers, none will of course be necessary.

A positive and unqualified denial by him, of having the books, papers, or entries demanded, in his possession, or under his control, will be conclusive; and, if made, will defeat the application. Hoyt vs. American Exchange Bank, 1 Duer, 652; 8 How., 89; Ahoyke vs. Wolcott, 4 Abb., 41; Bradstreet vs. Bailey, 4 Abb., 233.

Where, however, the party has been in possession of a paper, a bare denial of having it, without sufficient diligence in searching, or an ade quate reason shown for inability to find it, will be insufficient. Southart vs. Dwight, 2 Sandf., 672; 2 C. R., 83. Especially so, if such denial appear to be evasive. Hicks vs. Charlick, 10 Abb., 129.

Nor where the applicant has a right to, or interest in, the books or

papers, will a denial that they contain the particulars stated in the application be sufficient. The party, under these circumstances, has a right to examine them and judge for himself. Higgins vs. Bishop, 12 L. O., 127.

(b.) ORDER ON MOTION.

If the application be refused, the prevailing party will, of course, enter and serve an order to that effect in the usual manner, in order to get rid of the stay of proceedings provided for by rule 17.

If it be granted, the applicant, in framing the order, must take especial care to comply exactly with the requisites prescribed by rule 16. That order must specify on its face:

The mode in which the discovery is to be made;

The time within which it is to be made;

When a deposit is ordered, the time for which that deposit is to continue;

And it must also declare the consequences of an omission to comply with it, which should be stated according to the nature.

If the order be against a plaintiff, he may be nonsuited;

Or, he may be excluded from giving the paper in evidence.

The former course is more peculiarly applicable, when the omission to produce goes to the whole merits. The latter, when it merely tends to proof, or failure of proof, of a portion of the case.

If against a defendant,

His defence may be stricken out;

He may be debarred from a particular defence;

Or, he may be similarly excluded from giving the paper in evidence. The last of these courses is applicable when the omission only goes to a partial failure of proof.

The second, when its operation is confined to one particular defence without affecting others.

The first, when the defect occasioned by the omission goes to the whole merits of the case.

Or, in either case, the party may be punished as for a contempt. This course is applicable when the refusal or omission to produce is wilful.

Which of these remedies will be extended, and, if so, to what extent, is a matter which, of course, rests entirely in the discretion of the judge. The point is one that requires careful attention at the time of the motion, and on the settlement of the order, as, under the rule as it now stands, the question as to the ulterior relief to be granted is to be settled at that time, and not on a subsequent motion.

Under the provisions of the Code, inspection of the book or paper

produced appears to be a matter of right. See Hoyt vs. American Exchange Bank, supra.

In case of discovery of entries, it will be confined, however, to the portions to which the applicant shows a right, the remainder of the books being sealed up, so as to prevent any examination into them. Higgins vs. Bishop, 12 L. O., 127 (128). As to the extent to which a discovery of entries will be compelled, see Brevoort vs. Warner, 8 How., 321.

As to the duty of an officer of the court temporarily in possession of papers, neither to make nor to permit a general inspection, see Hergman vs. Dittlebach, 11 How., 46.

The party ordered to produce books or papers must either deliver a sworn copy, or permit the other party to take one. Hoyt vs. American Exchange Bank, 1 Duer, 652; 8 How., 89. Where sworn copies are delivered they must be duly and sufficiently verified. Same case. As to the right of a principal to demand a sworn copy of his agent's accounts, see Ruberry vs. Binns, 5 Bosw., 685.

In some cases, where not necessary for protection of the applicant, a personal inspection has been refused, on sworn copies being ordered. Hoyt vs. American Exchange Bank, supra; Stanton vs. Delaware Mutual Insurance Company, 2 Sandf., 662.

When granted, a deposit is generally for the purpose of insuring the production of the documents in court. As to the mode and the extent to which it may usually be required, see Moore vs. Pentz, 2 Sandf., 664. When fraud is apprehended, a demand for it will, of course, be proper. If unnecessary, it may be refused, and an order providing for a reasonable opportunity to inspect it, substituted. Pindar vs. Seaman, 33 Barb., 140.

Where the applicant's right is clear, and a discovery unreasonably refused, costs of the motion may be given. Brevoort vs. Warner, 8 How., 321.

An order of this nature, resting in the discretion of the court, is not appealable. White vs. Monroe, 33 Barb., 650; 12 Abb., 357.

(c.) COURSE ON NEGLECT OR REFUSAL.

This is now clearly pointed out by rule 16, as above cited. The default in compliance must be proved by affidavit in the usual manner. An application must be then made to the court, at special term, grounded on that proof, and the court may, as of course, grant a rule absolute, giving effect to the consequences stated on the face of the previous order. This proceeding is evidently ex parte. The absolute order must be duly entered and served, and, when served, the proceeding is complete, and those consequences will be carried out.

There can be little doubt, however, but that it is competent to the court, if it so think fit, to grant the defaulting party an opportunity of being heard, either by directing the motion to be brought on on notice in the first instance, or on a subsequent application to vacate.

Prior to the making of the above special provisions in the rule in question, the striking out of a defendant's answer was held to be a proper remedy, in a case where the omission to discover went to the general merits. Gould vs. McCarty, 1 Kern., 575. See likewise Bonesteel vs. Lynde, 8 How., 226; affirmed, 8 How., 352, on a similar failure to produce under a subpoena duces tecum. See likewise, as to an order for exclusion, granted previous to that revision, Powers vs. Elmendorf, 4 How., 60; 2 C. R., 44.

The punishment by way of proceeding by contempt, is, of course only applicable to cases of clear contumacy. As a general rule, suffi cient relief will be afforded by means of one or more of the other modes prescribed. See course pursued in Pindar vs. Seaman, 33 Barb., 140 Prior to the revision of the rules, it was held that the power to take ulterior proceedings on a refusal or neglect to produce, was vested in the court alone. It had no power to order a reference for the purpose of making a more efficient examination. Hoyt vs. American Exchange Bank, 1 Duer, 652; 8 How., 89.

But, in the same case, it was held that, in the event of a discovery by sworn copies manifestly incomplete, the proper course was to apply to the court for further copies. And there is little doubt, but that such an application will still be admissible.

The power of the court, in case of a refusal to produce, does not extend, however, to compel the defendant to make any admission of the plaintiff's case beyond what would be implied from a neglect to plead. Follett vs. Weed, 3 How., 360. The plaintiff is, under such circumstances, "to be placed in the same situation in which he would have been, if the defendants had suffered default for want of a plea."

CHAPTER V.

EXAMINATION OF PARTIES, AND RULES OF EVIDENCE.

§ 203. Statutory and Other Provisions.

THE portion of the Code which prescribes and regulates the practice in these matters is contained in chapters VI. and VII., title XII., part II. These two chapters run as follows:

CHAPTER VI.

Examination of Parties.

§ 389. (343.) No action to obtain discovery under oath, in aid of the prosecution or defence of another action, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter.

§ 390. (344.) A party to an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in the same manner, and subject to the same rules of examination as any other witness, to testify, either at the trial, or conditionally, or upon commission.

391. (345.) The examination, instead of being had at the trial, as provided in the last section, may be had at any time before the trial, at the option of the party claiming it, before a judge of the court, or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled to ttend in any other county than that of his residence, or where he may be erved with a summons for his attendance.

A mere verbal correction made in 1849.

§ 392. (346.) The party to be examined, as in the last section provided, nay be compelled to attend, in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed by the judge in like manner, and may be read by either party on the trial.

§ 393. (348.) The examination of the party, thus taken, may be rebutted by adverse testimony.

The previous order of this and the next section altered, and a slight verbal change made n 1849.

§ 394. (347.) If a party refuse to attend and testify as in the last four sections provided, he may be punished as for a contempt, and his complaint, answer, or reply, may be stricken out.

Dates from 1849. In 1848, the arrangement of the sections, and the wording of this provi sion, were different.

395. (349.) A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his auswers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf, in respect to such new matter, and shall be so received.

Dates from 1849. In 1848, the latter part of the section was less definitely worded