ered by said mortgage], and what are the boundary lines of said premises [or, what the north boundary line of said premises is]. [State reasons why there is uncertainty, or nature of controversy.]

V. That said premises [and the adjoining premises affected by said boundary] belong, as deponent is informed and believes, to Y. Z., the above-named defendant, and that the same, including the portion as to which there is uncertainty or controversy, are in the exclusive possession of said Y. Z. [or, of M. N., of

- add particulars, if possible, if possession is qualified as in case of tenancies, etc.], under a claim that he is the owner [or otherwise].

VI. That this motion is made in good faith and without delay, and not for the purpose of delay on the part of this deponent. [Jurat.]

[Signature.]

FORM No. 1385.

Notice of motion for survey.25

[As in Form 815, p. 1171, of this volume, omitting the matter in brackets following the †, and substituting for the italic matter between the and the ¶ the following:] granting leave to [the applicant] his necessary servants and agents to enter upon the property of Y. Z. below mentioned for the purpose of making a survey thereof [or, of a boundary line between the property of A. B. and the property of Y. Z.], which said property is more particularly described [or, which said property is briefly describe it and is adjacent to that more particularly described] in the annexed affidavit of A. B.

FORM No. 1386.

Order for survey.

[Title of court and action.]

the

At a Special Term [etc., as in
Form 820, p. 1174].

On reading and filing the annexed affidavit of A. B., verified 19 and the affidavit thereto attached

day of

of C. D., verified the day of 19 showing that due notice of this motion was duly served upon [the party in possession], and after hearing A. T., Esq., in support of this motion, and T. Z., Esq., [or, no one appearing], in opposition thereto. Now, on motion of A. T., attorney for [the applicant]:

25 N. Y. Code Civ. Pro., § 1682.

ORDERED, 1. That leave is hereby granted to [the applicant], his necessary surveyors, servants and agents to enter upon the real property herein below described for the purpose of making a survey thereon to ascertain the boundary lines [or, the north boundary lines] of the premises described in the complaint herein.

2. That a copy of this order be served upon Y. Z., the owner [or, occupant] of the above-mentioned premises [two] days before the entry herein allowed is made upon the said property. The following is a description as definite as may be of the property [or, boundary line] to be surveyed [and of the real property upon which it is necessary to enter for the purpose of making such survey [insert description].

Enter: [signature of judge by initials of name and title.]

ARTICLE IV.

DISCOVERY AND INSPECTION OF DOCUMENTS.26

[See tables on next two pages; also explanations on page 1346 of this volume.] The power of the court was inherent in chancery (Volume I, p. 534), and extended to common law actions by the New York Constitution merging the jurisdiction in law and equity, as well as by the Revised Statutes previously (2 N. Y. R. S. 199, § 21). The power is now expressly recognized by statute (N. Y. Code Civ. Pro., § 803), and extended to all courts of record other than justices' courts in cities, with a direction that the general rules of practice must prescribe the cases in which the power may be exercised, and the proceedings where the same are not prescribed in the Code. The rules of court made pursuant to this direction (N. Y. Gen. Rules, Nos. 14-16) contemplate discovery to enable the applicant to plead, or to enable him to prepare for trial. It has been held both under the former Code of Procedure and the Code of Civil Procedure (Seligman v. Real Estate Trust Co., 20 Abb. N. C. 210, and note), and I think well held, though there are other cases sounding to the contrary27 that the provision in the Codes authorizing the court, in case of disobedience, to direct that the document be excluded from being given in evidence, extends the power of the court, beyond the chancery rule which forbade discovery to ascertain the adversary's evidence, and allows it now to be exercised to inspect a document which the adversary relies on, if justice entitles the applicant to examine it in order to meet it on the trial; as for instance, where the adversary expressly sets it forth in his pleading,28 or where it consists of a record kept by the adversary admittedly as agent of the applicant29 or where the applicant alleges forgery30 or falsification,31 or where inspection is agreed to be permitted,32 or the books are firm books.33

26" Documents," in the law of evidence, includes books, papers, and written or printed matter generally. Discovery is not yet extended in New York courts to other objects such as merchandise (Ansen v. Tuska, 19 Abb. Pr. 391), machinery (Cook v. Lalance Grojean Mfg. Co., 29 Hun, 641), and the like. Rule 14, of the Gen. Rules of Practice, extending discovery to include any "article or property" is held to be without force, as in conflict with the statute. Auerbach v. D., L. & W. R. R. Co., 66 App. Div. 201, 73 N. Y. Supp. 118.

The statutory mode of obtaining discovery is exclusive, and must be followed. Romer v. Kensico Cem. Co., 79 App. Div. 100, 80 N. Y. Supp. 38. Whether marks or symbols on trees, etc., may be "documents," see Hayden v. Van Cortlandt, 84 Hun, 150, 32 N. Y. Supp. 507.

27 See Andrews v. Townshend, 48 N. Y. Super. Ct. 162; Mott v. Consumers' Ice Co., 2 Abb. N. C. 143; Sanger v. Seymour, 42 Hun, 641.

28 Seligman v. Real Estate Trust Co., 20 Abb. N. C. 210, and cases cited. 29 See Manley v. Bonnel, 11 Abb. N. C. 123; Duff v. Hutchinson, 19 Wkly. Dig. 20, and White v. Ahrens, 32 Wkly. Rep. 649. See, also, Martine v. Albro, 26 Hun, 559; Newman v. Newman, 20 Wkly. Dig. 283 (partnership books). Thomas v. Waite Co., 113 App. 494 (wages proportioned to net profits). As to executors, etc., see Livingston v. Curtis, 12 Hun, 121.

30 Cornell v. Woolsey, 7 Wkly. Dig. 555; Holmes v. Cornell, 7 id. 375; Hepburn v. Archer, 20 Hun, 535; Bamberger v. U. S. Fidelity, etc., Co., 37 Misc. 512, 75 N. Y. Supp. 1005.

Forgery was a recognized exception to the restricted rule in chancery. Bischoffsheim v. Brown, 29 Fed. Rep. 341 (dictum as to forgery).

31 Inyo Mining, etc., Co. v. Pheby, 49 N. Y. Super. Ct. 392 (plaintiff's allegation of falsification of plaintiff's account kept by defendant when in plaintiff's service). Cohn v. Hessel, 95 App. Div. 548, 88 N. Y. Supp. 1057. Com pare Walmsley v. Nelson, 3 Abb. N. C. 127.

32 Ballenberg v. Wahn, 103 App. Div. 34, 92 N. Y. Supp. 830.

33 Bearns v. Burras, 86 Hun, 258, 33 N. Y. Supp. 262; Howlet v. Hall, 55 App. Div. 614, 67 N. Y. Supp. 267.

METHODS OF DISCOVERY IN