FORM No. 1389.

Affidavit to oppose petition for discovery.57

[Title of court and action.]

Y. Z., defendant above named, being duly sworn, says:

I. I have in my possession or control the documents relating to the matters in question in this suit set forth in the first schedule hereto.

II. I object to produce the said documents set forth in the first schedule hereto.

III. [Here state upon what grounds the objection is made, and verify the facts as far as may be; see p. 1622, end of note.]

IV. I have had, but have not now, in my possession or power, the documents relating to the matters in question in this suit set forth in the second schedule hereto.58

V. The last-mentioned documents were last in my possession or power on [state when].

VI. [Here state what has become of the last-mentioned documents, and in whose possession they now are.]59

VII. According to the best of my knowledge, information and belief, I have not now, and never had in my possession,60 custody or power; or in the possession, custody or power of any attorney, solicitor, counsel or agent of mine; or in the possession, custody or power of any other person or persons on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum,

See

57 N. Y. Code Civ. Pro., § 806. This Form is adapted from the Form prescribed under the English Judicature Act, 1875, App. B., Form 9. Minet. Morgan, L. R., 8 Ch. 361, 11 Eq. 284. Corporation of Hastings t. Ival, L. R., 8 Ch. 1017.

58 A denial by several should be: We have not in our power or possession, and neither of us has in his power or possession, etc. Fendall v. O'Connell, 33 W. R. 619, 52 L. T. R. (N. S.) 553.

A denial must be explicit. Нерburn r. Archer, 20 Hun, 535.

59 The denial of possession, if cred

ited, puts an end to proceedings. Hoyt . American Exchange Bank, 1 Duer, 652; Ahoyke v. Wolcott, 4 Abb. Pr. 41. But a denial of materiality does not. Clyde v. Rogers, 24 Hun, 145.

Where possession of the books or documents at one time is admitted, or not denied, a mere statement denying present possession or control is utterly insufficient. McCreery v. Ghormley, 6 App. Div. 170, 39 Ñ. Y. Supp. 1036; Holly Mfg. Co. v. Venner, 86 Hun, 42, 33 N. Y. Supp. 287, 2 Anno. Cas. 128.

60 See note 58, and p. 1624, n. 45.

paper or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters or any of them, [other than and except the documents set forth in the said first and second schedules hereto].

[Jurat.]

FORM No. 1390.

[Signature.]

Order absolute for discovery and inspection (short Form).61

At a Special Term [etc., as in

[Title of action.]

Form 820, p. 1174].

An order having been heretofore on the

day of

day of

day of

19, granted in this action directing the [defendant] herein to allow the [plaintiff] herein on or before the 19 to inspect [designating the document as thus: a certain paper or certificate dated the 19 ], referred to in the petition on which said order was granted, and to allow plaintiff to take a copy of said [paper or certificate], or in default thereof to show cause before this court why such inspection with copy should not be allowed; and the said defendant not having allowed such discovery, and having appeared and failed to show sufficient cause why such inspection' with copy should not be allowed: Now, on reading and filing said order to show cause granted by Mr. Justice J. K., dated the

day of

19 and the petition of the [plaintiff] on which it was granted [and on the pleadings, and designate other papers, if any], and after hearing A. T., of counsel for said plaintiff, in support of the motion, and Z. T., of counsel for said defendant in opposition, and on motion of A. T., attorney for said plaintiff:

ORDERED, that the said [defendant] produce at the office of the said [defendant's] attorney [or, at the office of Esq., hereby appointed referee] 2 at No.

on the day of

,

street, in 19 [and at such other times as the referee may appoint]63 at o'clock in the noon, the aforesaid [paper or certificate], and there allow plaintiffs or their said attorney to inspect the same, and to take

61 Sustained by Seligman v. Real Estate Trust Co., 20 Abb. N. C. 210. 62 A referee may be appointed to superintend the discovery and inspection. See Form No. 1395.

63 Held proper in Hallett v. Am. Law Book Co., 40 Misc. 652, 83 N. Y. Supp. 110.

a copy thereof. [For other Forms see 1387, 1391-1397 (below).] And it is further ordered, that all proceedings on the part of the [defendant] are hereby stayed until this order shall have been fully complied with or vacated.

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

FORMS NOS. 1391-1397.-STATEMENTS SUITABLE TO INSERT IN FORE

GOING FORM.

FORM No. 1391.

within

[or,

Direction to deposit books and papers with clerk, referee, or attorney.65 ORDERED, that said defendant days after service of a certified copy of this order upon his attorney [or, upon said defendant personally], deposit with the clerk of this court, at his office in the county court house in the city of deposit with Esq., hereby appointed referee for such purpose] the books, letters and telegrams above referred to, and give the plaintiff's attorneys written notice of such deposit; the books, letters and telegrams to remain on deposit with the clerk [or, referee] for days after the service of such notice, during which time the plaintiff, his attorney, clerks and assistants, shall have leave to inspect and copy the accounts, letters and telegrams above mentioned.

That said

FORM No. 1392.

Exception as to books not procurable.66

deposit, etc. [or, produce, etc.] all books and papers hereinbefore referred to so far as the same are in the possession or under the control of said

FORM No. 1393.

Directing inspection at adversary's place of business.67

ORDERED, that said defendants permit an inspection by plaintiff, his attorney, clerks and assistants, of their account books, vouchers, receipts and checks, showing what they have received. and paid out in carrying on their business; that such inspection be had at the place of business of the defendant in

64 Gen. Rule No. 16.

65 Rossner v. N. Y. Museum Assoc., 20 Hun, 182. The court will not require the deposit of books in daily use, but will direct an inspection to be permitted at the party's place of business. See Form 1393. See, also, note 49 to Form 1387.

in

66 Proper where some question is raised as to existence of the books and records. See Palmer v. United Press, 67 App. Div. 64, 73 N. Y. Supp. 456.

67 From Ballenberg . Wahn, 103 App. Div. 34, 92 N. Y. Supp. 820.

ordinary course during business hours, with permission to plaintiff to have such copies thereof made by his clerks and assistants as he may desire.

FORM No. 1394.

Alternative direction, to deposit with clerk, or to permit inspection at place of business.

ORDERED, that within five days from the service upon the defendant's attorney of a copy of this order, defendant produce and deposit with the clerk of this court the [books and papers of the firm of O. & Co., containing the transactions of said firm between 19 and 19,] and that said books. and papers remain subject to the inspection and copy of the plaintiff herein, and such accountants as he may employ, for the space of twenty days after such deposit and notice thereof to his attorney; or, that in place of depositing with the clerk of this court said books and papers as aforesaid, the defendant may re tain them at his business office, in which case he shall, within five days after the service upon his attorney of a copy of this order, notify plaintiff's attorney of his election to retain said books and papers, and the same shall thereupon, for the space of twenty days thereafter be open to the inspection and copy by plaintiff, his clerks and assistants, from [three until five P. M.] on each business day.&

68

FORM No. 1395.

Exception as to books beyond the jurisdiction.69

It is further ordered that said company is hereby required to produce [before the referee], for the purpose of the inspection directed in this order, such only of said books as are within the control of said company or its officers in this State, and shall not be required to produce such books as are at its office in ; that in respect to the books not produced, the said defendant shall produce and deliver to [said referee for the use of] the plaintiff sworn copies of their contents which relate to the subject matter mentioned in said order; [that such sworn copies shall be so produced and delivered within forty days after it

68 From the order in Vieller v. Oppenheim, 31 Abb. N. C. 181, 75 Hun, 21, 26 N. Y. Supp. 1051.

69 From a General Term order on appeal, modifying the order below by inserting this clause. Ervin v. Oregon, etc., R. & Nav. Co., 22 Hun, 566.

If the party is a foreign corporation it has been held that it must be

shown that the books are in this State. Snow, etc., Co. v. SnowChurch Co., 80 App. Div. 40, 80 N. Y. Supp. 512. Compare, however, Simms v. Bonner, 16 N. Y. Supp. 801, 21 Civ. Pro. 379, where the court, as alternative for production, required sworn copies to be produced.

an

appears to the satisfaction of the referee that the original books cannot be produced before him; that the said referee may pass upon the sufficiency of said copies, and in his discretion direct other or further copies to be produced and delivered].

FORM No. 1396.

Direction to serve sworn copy, but with leave to deposit instead.70 ORDERED, that the defendant, within days after service of a certified copy of this order upon defendant's attorney [or, upon defendant personally], deliver to the plaintiff's attorney sworn copies of all the entries contained in the several books of account kept by defendant, including the original entries under the heading

, relating to all the transactions had by him for the plaintiff as his broker, and of all other entries in the said books of account relating to transactions had by defendant for plaintiff or his account, or in respect to which he had an interest; also of all the letters and telegrams in defendant's possession or control, received by him from the plaintiff, between the

day of

19

day

It is further ordered, that instead of serving sworn copies the defendant may [continue as in 1391 from the *]71

FORM No. 1397.

Preclusion from proving document not produced.72

It is further ordered that the defendant be, and hereby is precluded from giving evidence upon the trial herein of any agreement or agreements between said and said or any agreements in any way affecting or governing the rights and duties of said and said as between each other and the employees respectively, except such agreements as they may produce as aforesaid.

quently been denied because of the want of the co-partner's consent. See Hadley v. McDougall, L. R., 7 Ch. App. 312.

71 The alternative direction is proper. O'Gorman v. O'Gorman, 92 Hun, 605, 36 N. Y. Supp. 401.

72 From an order settled at Special Term in a contested case. See, also, Whitworth v. Erie R. R. Co., 37 N. Y. Super. Ct. 437. The safer practice is to apply after disobedience for an order precluding the evidence. See pp. 1407-1409, and notes.