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1387. Petition for discovery and in
spection, or that cause be
shown. 1388. Order thereon. 1389. Affidavit to oppose petition for
1390. Order absolute for discovery
and inspection. 1391-1397. Statements suitable to in
sert in foregoing form.
NOTE.— As to discovering books and papers of debtor by attaching his property and books, see Brooke 1. Foster, 20 Abb. N. C. 200; Bleier t. Davidson, Id., 207, n., and cases cited, and p. 1360 of this volume, Form 1015.
Getting copy of document by demand of account or order for bill of particulars, see p. 1394 of this volume.
For getting evidence by mandamus, see the following cases:
Inspection of books of a foreign corporation. Matter of Rappelye, 43 App. Div. 84, 59 N. Y. Supp. 338; Huylar v. Cragin Cattle Co. (N. J., 1887); s. C., 5 Centr. Rep. 645 (but denying the petition as to papers and memoranda) ; Swift 1. Richardson (Del., 1886) 6 Centr. Rep. 843; People ex rel. Delmar r. St. Louis, etc., R. R. Co., 44 Hun, 552; s. C., 19 Abb. N. C. 1 (reference to take proof of facts alleged and denied in the affidavits may be made).
Inspection of books of benevolent corporation. People er rel. Aaronson r. Scheel, 8 Abb. N. C. 342. Books of domestic corporation. Matter of Steinway, 159 N. Y. 250; People ex rel. v. Columbia Bag Co., 103 App. Div. 208; People er rel, McDonald u. U. S. Mercantile Rep. Co., 20 Abb. N. C. 192; Commonwealth r. Phænix Iron Co., 105 Pa. St. 111; Phænix Iron Co. r. Commonwealth, 113 id. 563; 5 Centr. Rep. 688; Matter of Sage r'. Lake Shore, etc., R. R. Co., 70 N. Y. 220. Books of defunct corporation in the custody of new company. In re Glamorganshire Banking Co., 33 Wkly. Rep. 209. Documents in the possession of liquidator of dissolved corporation. London & Yorkshire Bk. v. Cooper, 15 Q. B. D. 7, 33 Wkly. Rep. 751; aff’d, 54 L. J. Q. B. 495. Mandamus to compel custodian of public records to permit inspection. People ex rel. Title Guarantee, etc., Co. v. Reilly, 38 Hun, 429; Colnon v. Orr, 71 Cal. 43, 11 Pac. Rep. 814. To compel public officials to give certificates. Matter of Roberts 1. Hatch, 40 Hun, 53; People ex rel. Haase v. German Hospital, 8 Abb. N. C. 332.
See Boyd v. United States, 116 U. S. 616' (holding that a statute compelling the production of private pa pers by the defendant in an action for a forfeiture is unconstitutional in that it compels him to be a witness against himself).
As to privilege of professional communications, see Mott v. Consumers' Ice Co., 2 Abb. N. C. 143.
As to investigations, see note on p. 1608.
FORM No. 1387. Petition for discovery and inspection, or that cause be shown.34 [Title of court and action.]
To the Court of [or, To Hon. J. K.,35 justice — or, judge — of the
]. The petition of A. B. [if a corporation, add: by A. B., its president — or, agent] shows to the court:
I. That he is the plaintiff [or, defendant] above named [or otherwise state relation to the cause, and excuse party's affidavit ,36 and that this action is brought [here briefly state its nature; and if the application is to enable to plead, see Forms on p. 1351, etc.].
II. [Here state condition of the cause, for instance, thus:] That issue has been joined by the service, on the day of
last, of defendant's answer [or, plaintiff's reply]; that the time appointed for holding the next Trial Term [or, next Special Term] in the county of
where this action is triable, is the day of
next. III. [Describe the books, papers, etc., of which discovery is sought, so as to identify them, 37 as thus:]38 That during the negotiation for, and in making the agreement sued on, deponent wrote to the [adverse party] several letters relating thereto, and in particular (two), bearing date about the day of etc., respectively, which, or some of them, as deponent is informed and believes [stating sources of information and belief]39 constitute said agreement. 40
34 Under N. Y. Code Civ. Pro., Gen. Rule No. 37, which forbids $ 805, application by petition is held orders to show cause being made reessential. Lee v. Winans, 99 App. turnable, as notices of motion may Div. 297, 90 N. Y. Supp. 960. Only be, in a county without the district. an adverse party may be required to See Volume I, p. 129, note. But it is give discovery. For general rules as safer to make the order returnable if to petitions, see Volume I, pp. 306, practicable, within the district. 312.
36 Fromme v. Lisner, 63 Hun, 290, For rules whereby the sufficiency 17 N. Y. Supp. 850. of the moving petition is tested, see 37 People 1. Trinity Church, 6 Abb. Bissell v. Mut. "Reserve Fund Assoc. Pr. 177; Cutting v. Balt. & 0. R. Co., 38 Misc. 249, 77 N. Y. Supp. 536. 51 App. Div. 628, 64 N. Y. Supp. 258;
See, also, the practice upon these Cornish 1. Wormser, 53 Hun, 40, 5 applications, and decisions reviewed, N. Y. Supp. 889. supra, pp. 1346-1351.
38 Thompson v. Erie Ry. Co., 9 Abb. 35 May apply er parte to any judge Pr. (N. S.) 230. authorized to make an order in the 39 If not set forth the allegation is action. See Volume I, pp. 101, 128. without probative force. Phillips v. The better opinion is, that the alter Curtis, 70 App. Div. 551, 75 N. Y. native in the usual order made on Supp. 581; Kings Co. Bank v. this petition, allowing the adverse Dougherty, 20 N. Y. Supp. 817. party to show cause instead of com- 40 It is essential to show that there plying, is not "an order to show are documents, books, entries, or the cause” within the meaning of N. Y. like, in existence, which contain ma
That, among fituting the evalt to the
IV. That, among other things, said [letters] contain [here specify matters constituting the evidence sought, in sufficient detail to show that they are material*l to the applicant's case, 42 and necessary for use upon the trial; or that he has a right to see them within the principles indicated or pp. 1350, 1619, and notes), and said [letters] are, as deponent is advised by his counsel, C. D., of , and verily believes, material and necessary43 to his case [or, defense) upon the trial of this cause; and that he cannot safely proceed to trial without them (or sworn copies of them).
[If discovery of books be sought, show that the books exist and contain entries on the subject:]44
[If books of a foreign corporation, show their presence in this state.— See Form 1395.]
V. That none of said [letters) are in the possession or under the control of deponent, nor has he kept any copies of, or extracts from them, and he is ignorant of their precise contents.45
VI. That the letters are, as deponent verily believes, in the possession or control46 of the [adverse party — stating sources of information and grounds of belief], and deponent knows of no way to obtain a knowledge thereof except by ordering him to make discovery thereof.
terial evidence; a discovery cannot be allowed for the purpose of ascertaining whether there is anything to discover. Hayden v. Van Cortlandt, 84 Hun, 150, 32 N. Y. Supp. 507; Brownell v. Bank of Gloversville, 20 Hun, 517.
41 Brooklyn Life Ins. Co. v. Pierce, 7 Hun, 236; N. Y. Gen. Rule No. 15; Walker v. Granite Bank, 44 Barb. 39, 19 Abb. Pr. 111.
42 The documentary evidence must go to sustain an issue upon which the applicant has the affirmative. Douglas v. Delano, 20 Wkly. Dig. 85; Shoe & L. Assoc. . Bailey, 49 N. Y. Super. Ct. 385.
43 The evidence need not be alleged to be indispensably necessary ( Whitworth . Erie R.' R. Co., 37 N. Y. Super. Ct. 437; Harbison v. Von Volkenburgh, 5 Hun, 454), though discovery is not allowed merely as a precautionary measure. Walmsley v. Nelson, 3 Abb. N. C. 127.
44 Russell v. McSwegan, 39 Misc. 306, 79 N. Y. Supp. 440; Walsh V.
Press Co., 48 App. Div. 333, 62 N. Y. Supp. 833. Gen. Rule No. 16. Books of original entry only will be required to be produced. Fidel. & Cas. Co. v. Seagrist, 79 App. Div. 614, 80 N. Y. Supp. 277.
Legal proof of these facts is required. Frowein v. Lindheim, 25 Abb. N. C. 87, 11 N. Y. Supp. 495. Though not absolute proof. Ahlymyer v. Healy, 14 Daly, 288, 12 Ñ. Y. St. Rep. 677.
45 This statement is essential. Sutter 1. New York, 89 App. Div. 494, 85 N. Y. Supp. 989; Moore r. Encyc. Britt. Co., 43 Misc. 618, 88 N. Y. Supp. 133. Where several join, ignorance, etc., of each must be alleged, but oath to the facts, at least in case of partners, may be made by one. Seligman v. Real Estate Trust Co., 20 Abb. N. C. 210.
46 It is not enough to show the documents to be in the hands of defendant's attorney, placed there by third persons. Douglas v. Delano, 20 Wkly. Dig. 85.
VII. That on the day of , 19, and since the commencement of this action, this petitioner applied to the plaintiff [or, defendant] for permission [here state what request was made], but said [plaintiff] refused said request. 47
VIII. [If plaintiff petitions, add] That your petitioner has fully and fairly stated the case in this action to his counsel, A. T., who resides at No. street, in the city of
, and that he has a good and meritorious cause of action herein, and that the discovery and inspection he seeks is necessary to enable him to prepare for trial, as he is advised by his said counsel after such statement, and verily believes.
[Or, if defendant petitions and answer is unverified, oath to merits, as in Form 1604, p. 1784, of this volume.]
IX. That this application is made in good faith for the purpose stated, and none other, [and that your petitioner intends to use the — entries, or, letters — on the trial] ; 48 and no previous application has been made [except — etc.; see p. 1172.]
X. [If a stay is desired, state facts showing its necessity.]
WHEREFORE, your petitioner asks that an order be made giving him a discovery and an inspection (and permission to take copies] of the [letters] hereinbefore described; and that said inspection and discovery be made * by requiring the plaintiff [or, defendant] to deliver sworn copies of said
to the [party applicant — or, by the deposit49 by the — adverse party — in the office of his attorney, Z. T., at No. street, in
- or, in the office of the clerk of this court — of the said , where they shall remain subject to the examination of the — applicant — his attorneys and accountants, during the ordinary business hours, for a period of weeks — or, by requiring defendant to pemit an inspection of said books at the defendant's place of business in ordinary course during business hours, or at such time and place as the court may order, with leave to take - photographic50 — copies thereof, or of any part thereof — or
47 This allegation has sometimes 48 May be advisable to add. Halsted been thought necessary, but it is not v. Halsted, 3 Misc. 618, 23 N. Y. now absolutely essential to sustain Supp. 191. an order, since the proceeding is by 49 Deposit not ordered with court order to make discovery or show clerk where only a small part of cause. Hallett v. Am. Law Book Co., document concerned applicant. Um40 Misc. 652, 83 N. Y. Supp. 110. freville 1. Manh. Ry. Co., 46 App. But if the fact be shown, and dis- Div. 594, 62 N. Y. Supp. 20. covery be finally ordered, it may be 50 A document will not be ordered with costs of motion. Seligman i. produced at a photographer's studio, Real Estate Trust Co., 20 Abb. N. C. but the party may be directed to de. 210.
posit it with the clerk with permis
as in 1391–1397 below]; or in default thereof that [defendant] show cause, at a Special Term of this court, to be held at the county court house in the city of , on the day of 19 , at o'clock in the noon, or as soon thereafter as counsel can be heard, why the prayer of this petition should not be granted; and for such other and further relief as may be just [with the costs of this motion].51 [Date.]
[Signature by party.] [Add corroborating affidavit if practicable.]52 [Verification by party as in Form 821, p. 1175.]
FORM No. 1388.
Order to make discovery or show cause.53 [Title of court and action.]
On the annexed petition of the (plaintiff] A. B. [and on the pleadings herein) and on motion of A. T., attorney for A. B.:
ORDERED, that the [defendant] Y. 2. give to said A. B. a discovery and inspection, and permission to take copies of the [documents] described in said petition (or specify what, if only a part], and that said discovery and inspection be made [continue according to prayer of petition from the * including alternative direction to show cause].
It is further ordered that such discovery and inspection if allowed, shall be made within days after the granting of this order, and that permission therefor shall be allowed [plaintiff] upon the service of a copy of this order upon [defendant's] attorney.54
[Let all proceedings on the part of said be stayed until after the hearing and determination of this motion.55] [Service hereof on the day of
shall be sufficient.] [Authentication as in Form 818, p. 1173.] [Serve with copy petition, etc., on the attorney,56 also, on party as a prerequisite to contempt proceedings.] sion to the adversary-to have it pho- Philips, 41 Hun, 603, 23 Wkly. Dig. tographed. Beck 1. Bohm, 95 App. 29, 5 St. Rep. 228. Div. 273, 88 N. Y. Supp. 584.
54 Under Gen. Rule No. 16. Ii de51 See note 47 on p. 1625.
posit is ordered the time of deposit 52 Gen. Rule No. 15 suggests some should be specified. additional facts in the affidavit; but 55 This stay may exceed 20 days. it is not believed necessary to restate N. Y. Code Civ. Pro., $ 805. Compare them in an affidavit, when set forth Vol. I, p. 425. in the petition, as above.
56 Rossner 1. N. Y. Museum Asso., 53 N. Y. Code Civ. Pro., $ 805. Per- 20 Hun, 182; ('n. Trust Co. v. Driggs, emptory order improper. Dick 1. 49 App. Div. 406, 63 N. Y. Supp. 381.