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now generally used to mean discovery of documents; and “examination before trial" is used to mean examination by oral interrogatory, whether for the purpose of discovery, or for the purpose of using the answer like the deposition of a witness at the trial.61] .

1. Power of court.
2. The practice - if documents only

are sought.
3. - if oral examination only is

sought. 4. — if both are sought. 5. The moving papers. 6. Motion to vacate or modify. 7. Ascertaining unknown defendants. 8. Examination of person not a party.

(1013) Affidavit to obtain examina

tion of officer of corporation defendant, and production of documents, to enable plaintiff to plead (action by stockholders for

accounting). (1014) Affidavit to obtain examina

tion of party to enable other party to plead (Gen

eral Form). (1015) Affidavit to obtain examina

tion of plaintiff to enable defendant to plead and prove his case (defense of fraud to action on a sale).

(1012) Petition for discovery and

inspection of documents
to enable plaintiff to plead.

1. Power of court.] — The new procedure has abolished bills of discovery, 62 and requires each party's pleading to state the facts constituting his cause of action or defense; and it has provided a remedy for a party who is ignorant of any of the facts material to constitute his case, and alleged to be in possession of his adversary, by examining the adversary so far as necessary to enable him to plead,64 and, for the same purpose, he may require the adversary to make discovery of books and papers containing the necessary information.65

61 In Merritt v. Thompson, 3 E. D. Smith, 283, 294, WOODRUFF, J., said: " It is, I apprehend, an entire mistake to say that because the bill for a discovery is no longer to be used, therefore a plaintiff cannot have a discovery. It is only the mode of obtaining a discovery that is altered. It is no longer necessary to apply by bill to a court of equity for a discovery where that alore is sought. The defendant may now be orally examined by order. But where the equitable power of the court is invoked to compel an accounting, to enforce a trust, to prevent a fraudulent misapplication of funds, or a misappropriation of property held as trustee, the jurisdiction of the court is as ample as it was before the Code. And the circumstance, that in ascertaining the facts by which the exercise of that jurisdiction is to be guided, the defendant may now be orally examined, and that discovery by answer cannot be compelled for the mere purpose of discovery, is quite immaterial.” 62 N 'Y. Code Civ. Pro., § 1914.

63 Glenny 1. Stedwell, I Abb. N. C. 327, with note, 64 N. Y. 120; Davis v. Stanford, 37 Hun, 531. But not a third person. Adriance v. Sanders, 11 Abb. N. C. 422, and cases cited; Knowlton v. Bannigan, 11 Abb. N. C. 419. 64 Kinney v. Roberts & Co., 26 Hun, 166. 65 See Form No. 1012, post.

But this power can only be exercised after action begun; an examination before service of the summons may only be had for the purpose of perpetuating testimony.66

Such an investigation is in practice usually limited to establishing one's own case, and not generally extended to exploring his adversary's case.67 The principal exception to this restriction is where an undisputed agency or other fiduciary relation gives the principal or beneficiary a right to know what has been done in his name or under cover of the relation.68

When sought before pleading, the examination is not granted to ascertain evidence, but only facts needed for the purpose of pleading.69 If, however, the parties have in their contract stipulated that an inspection may be had, the court will give effect to it notwithstanding plaintiff may have sufficient knowledge to


2. The practice if documents only are sought.] — If the application is for discovery and inspection of documents, without oral examination of the party, apply ex parte to the court, or to any judge authorized to make an order in the action ;+1 and in such case the application must be founded upon a petition, and take an order that the party produce, etc., or show cause.

3. If oral examination only is sought.] — If the application is for oral examination without discovery of documents, apply on affidavits ex parte,"3 not to the court, but to a judge of the court in which the action is pending74 (or if that court be the Supreme Court, application may be made to a county judge75), and take an order that the party appear before a judge of the court, or before a referee named in the order. Though the statute reads that the order must be granted, it is, nevertheless, discretionary.76

66 Matter of Schlotterer, 105 App. Div. 115, 93 N. Y. Supp. 895; Ellett o. Young, 95 App. Div. 417, 88 N. Y. Supp. 661.

See p. 534, Vol. I, under title ExAMINATION BEFORE ACTION BEGUN.

67 Dudley v. N. Y. Filter Mfg. Co., 80 App. Div. 164, 80 N. Y. Supp. 529; Manh. Elec. L. Co. t. Cons. Tel., etc., Co., 59 Hun, 824, 13 N. Y. Supp. 353.

69 Manley v. Bonnel, 11 Abb. N. C. 123; Dudley v. N. Y. Filter Mfg. Co., su pra.

ing Where the only information plaintiff requires is the exact amount of damages, the order will not be granted. Taylor v. Am. Ribbon Co., 38 App. Div. 144, 56 N. Y. Supp. 667; Martin v. Trinidad Asphalt Co., 87 App. Div. 472, 84 N. Y. Supp. 711. Allowed where by reason of the peculiar situation the amount could not be even approximately stated. Matter of Erie Mall. Iron Co., 90 Hun, 62, 35 N. Y. Supp. 597.

70 Ballenberg 1. Wahn, 103 App. Div. 34, 92 N. Y. Supp. 830; Fid. & Cas. Co. r'. Siegrist Co., 79 App. Div. 614, 80 N. Y. Supp. 277.

71 N. Y. Code Civ. Pro., 805. As to what judge may act, see Vol. I, pp. 99, 99.

*72 N. Y. Code Civ. Pro.. $ 805; Lee v. Winans, 99 App. Div. 297, 90 N. Y. Supp. 960; Boeck r. Smith, 85 App. Div. 576, 83 N. Y. Supp. 428.

73 Jerrels r. Perkins, 25 App. Div. 348, 49 N. Y. Supp. 597.

4. if both are sought.] — The two applications cannot be combined ; 77 the practice to insert in an order for oral examination a direction for discovery and inspection of documents, or even for the production of documents, has been held unauthorized and improper.78 If the witness is unable to testify from recollection, and it appears that he can answer by reference to his books, the books can be required to be produced by subpoena duces tecum,79 and entries therein proved.

It is also improper to combine the examination of a party for the purpose of pleading, and of a third person to perpetuate his testimony.80

Where a corporation is a party, corporate books and papers may be ordered produced upon an application for examination before trial, not for inspection, but for the use of the officer upon his examination, and as an adjunct thereto.81

5. The moving papers.] — The applicant must show that the action has been commenced,82 that he does not possess the information which he seeks,83 and that he is unable to plead without

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78 Matter of Sands, 98 App. Div. 148, 90 N. Y. Supp. 749; Boeck v. Smith, supra; Gee r. Pendas, 87 App. Div. 157, 84 N. Y. Supp. 32.

79 Gee r. Pendas, supra; Savage v. Neely, 8 App. Div. 316, 40 N. Y. Supp. 946. Or the witness required to refer to the books. Green v. Carey, 81 Hun, 496, 31 N. Y. Supp. 8.

$0 Boeck v. Smith, supra.

81 Matter of Sands, 98 App. Div. 148, 90 N. Y. Supp. 749; Bruen v. Whitman Co., 106 App. Div. 248, 94 N. Y. Supp. 304; Mauthey v. Wyoming, etc., Ins. Co., 76 App. Div. 579, 78 N. Y. Supp. 596. If a foreign corporation, the books must be shown to be within the State. Snow, Church & Co. v. SnowChurch Co., 80 App. Div. 40, 80 N. Y. Supp. 512.

82 Matter of Anthony & Co., 42 App. Div. 66, 58 N. Y. Supp. 907, 6 Anno. Cas. 310, 29 Civ. Pro. Rep. 353; L. I. Bottlers v. Bottling Brewers, 65 App. Div. 459, 72 N. Y. Supp. 976.

83 Dannenberg v. Heller, 88 App. Div. 548, 85 N. Y. Supp. 90: Sutter v. City of New York, 89 App. Div. 494, 85 N. Y. Supp. 989; Selisberg v. Schepp, 79 App. Div. 626, 80 N. Y. Supp. 154.

first securing it. 54 Inability to state the exact amount of damages is not a sufficient ground.85 The information desired must be shown to be peculiarly within the adversary's knowledge, and otherwise inaccessible to the applicant;86 and the writings sought to be inspected must be shown to exist and in the adversary's contro1,97 and that they contain the information desired.88 Demand for and refusal of inspection need not be shown,s but refusal of information must precede an application for examination.90

Great latitude is permitted, and the ordinary rules restricting the examination or inspection will be inapplicable, where a fiduciary relation exists or the party's agent is the adversary. 91

The affidavit may properly be made by the attorney in the absence of the party, but it is the party's lack of knowledge which must be shown ;92 the usual rules are applicable requiring allegagations on information and belief to disclose the source and excuse non-production of the affidavit of the one who knows the fact. 93

6. Motion to vacate or modify.] — The motion is properly made, on notice, to the Special Term.94 If the moving party is avoiding service of the order, the court should not entertain his motion to vacate.95

After a motion to vacate, based only on the papers upon which it was granted, has been denied, leave to renew must be first obtained in order to move upon the same and additional papers. 96 7. Ascertaining unknown defendants.] — Before action begun, an examination of a witness, or of an expected adverse party, or an inspection of documents, will not be allowed to enable the claimant either to ascertain whether he has a cause of action, or the particular persons who should be made defendants.97 Nor, to enable plaintiff to ascertain whether he has sued the proper party, or should discontinue, or join others,98 under guise of obtaining facts to enable him to plead.99 The rule is the same after summons served, or issue joined.?

84 Martin r. Trinidad Asphalt Co., 87 App. Div. 472, 84 N. Y. Supp. 711; Court Rule No. 82; Clark 1. Ennis, 65 App. Div. 164, 72 N. Y. Supp. 581; Hutchinson v. Simpson, 73 App. Div. 520, 77 N. Y. Supp. 197.

85 See paragraph 1, supra, and cases cited in notes.

86 Elmes r. Duke, 39 Misc. 244, 79 N. Y. Supp. 425; Leary v, O'Brien, 33 Misc. 499, 68 N. Y. Supp. 908.

87 Brock r. Surpless, 66 App. Div. 609, 72 N. Y. Supp. 831.
88 Walsh 1. Press Co., 48 App. Div. 333, 62 N. Y. Supp. 833.

89 Albany Brass, etc., Co. r. Hoffman, 12 Misc. 167; Blumberg v. Lindeman, 19 App. Div. 370, 46 N. Y. Supp. 302.

90 Sherman v. Beacon Const. Co., 58 Hun, 143, 11 N. Y. Supp. 369.

91 Dudley . N. Y. Filter Mfg. Co., 80 App. Div. 164, 80 N. Y. Supp. 529: Rosenbaum r. Rice, 36 Misc. 410, 73 N. Y. Supp. 714; Howlett v. Hall, 55 App. Div. 514, 67 N. Y. Supp. 267.

92 See Treadwell v. Greene, 87 App. Div. 425, 84 N. Y. Supp. 557; Fromme r. Lisner, 63 Hun, 290, 17 N. Y. Supp. 850.

93 Phillips 0. Curtis, 70 App. Div. 551, 75 N. Y. Supp. 581. Absence from the country or State may be insufficient without showing that the party is at some distant point. Orne r. Greene, 74 App. Div. 404, 77 N. Y. Supp. 475; Wolff r. Kaufman, 65 App. Div. 29, 72 N. Y. Supp. 500.

94 Matter of Schlotterer, 105 App. Div. 115. 93 V. Y. Supp. 895.
95 Dudley i'. Press Pub. Co., 58 Hun, 181. 11 N. Y. Supp. 337.
96 Sheehan r'. Carvalho, 12 App. Div. 430, 42 X. Y. Supp. 222.

8. Examination of person not a party.] — Whether such an examination may be had for the purpose of framing a pleading is not authoritatively settled. It is probable that the reasoning of several cases has established the rule in the first and second departments that such examination cannot be had; that the deposition of the witness may only be taken for use at the trial.? In the fourth department an order for such an examination has been sustained. 3

FORM No. 1012. Petition for discovery and inspection of documents to enable plaintiff to

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[Title of court and action.]

To the Court of

The petition of A. B., the above-uamed plaintiff, respectfully shows,

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4 Sustained in Stilwell v. Priest, 85 N. Y. 649. The application is ex.

pressly sanctioned by N. Y. Gen. Rule No. 14, where books, papers and docu.

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