#### William L. Brown, Respondent, *v.*William Georgi et al., Appellants.

(Supreme Court, Appellate Term,

January, 1899.)

1. Inspection and discovery — Appeal from order.

Where an action is founded on a lease executed in duplicate, whose terms are in dispute, and the plaintiff cannot find his copy, the court, although the defendants make a bare denial of possession of their copy, may order an inspection and discovery of it to assist the plaintiff in drawing an amended complaint, and such an order is not appealable.

3. Same — Penalty for not complying — Service of order.

A subsequent order striking out the answers unless the order for inspection be complied with in two days, is within the power of the court, does not affect a substantial right, and may properly be served on the attorney for the defendants, where the latter appeared upon the motion in the City Court of New York and contested it on the merits.

3. Appeal — Failure to enter order denying a motion to vacate an order for judgment.

Where a subsequent order of the said City Court, striking out the answers and giving judgment to the plaintiff, is granted *ex parte,*and no order denying a motion to vacate it was before the General Term of the said City Court nor is before the Appellate Term, the latter tribunal cannot entertain an appeal from an order affirming the order to strike out.

Appeals by the defendants from affirmance by the General Term of the City Court of New York, of an order for inspection and discovery, an order directing the striking out of defendant’s answers unless the prior order for discovery be complied with in two days, and an order striking out such answers and for judgment.

The opinion states the facts so far as they are material.

C. F. Swart, for appellant Isabella Georgi.

H. A. Vieu, for appellant William Georgi.

William J. Walsh, for respondent.

*129Giegerich, J.

The order for inspection and discovery was, in its nature, a discretionary one; hence it was not appealable to this court unless the record should disclose a total absence of grounds upon which discretion could proceed. Allen v. Meyer, 73 N. Y. 1; Kreizer v. Allaire, 16 Misc. Rep. 6. Here, the court below could have been led to believe, by the verified petition, that the lease upon which the action was founded had been executed in duplicate and that, while the plaintiff was unable to find his own copy, the defendants were in possession of one themselves, an inspection of which was necessary for the preparation of an amended complaint, since the terms of the instrument were disputed. The matter did not necessarily involve a mere search of the defendants’ evidence, for the lease was the foundation of the plaintiff’s case, and the discovery was sought to avoid a variance from the proof, which the complaint might well present if drawn merely upon recollection of the contract. That such a variance would result was suggested by the denial interposed to the original complaint, and, therefore, reason for the discovery in aid of the amended complaint is found. Rule 1, subd. 1 of General Rules of Practice.

The bare denial of the defendants that they had possession of the paper was not of a nature necessarily to commend itself to the court below as conclusive in fact (Hepburn v. Archer, 20 Hun, 535; Holly Mfg. Co. v. Venner, 86 id. 42), and, accordingly, we cannot say that there was no room for the exercise of discretion in the plaintiff’s favor.

Therefore, the order was not appealable, and, indeed, the right to an appeal in such a ease has been denied, absolutely, from the mere nature of the order, irrespective of the facts. Clyde v. Rogers, 87 N. Y. 625; Finlay v. Chapman, 119 id. 404.

The order directing that the defendants’ answer be stricken out upon their failure to comply with the order for discovery was fully within the power of the court below to make (Code Civ. Pro., § 808), and the fact that service of this original order was made upon their attorney, rather than upon them personally, did not deprive the court of that power, since they appeared upon the motion to strike out the answers and contested the matter upon the merits.

Doubtless the court could have compelled the plaintiff to make personal service of the order before entertaining the motion thus to punish the defendants, this being the usual practice, but the power of the court was not limited to a strict regard for that *130practice, where the parties were actually before it and were fully apprised of the nature of the proceeding. Hart v. Johnson, 43 Hun, 505. Personal service was not required by the statute in this case, and the question of sufficiency of notice to justify the order was one which addressed itself to the court’s discretion. Moreover, this order did not affect a substantial right, since its operation did not extend to the striking out of the answers, but left the matter in the alternative subject to the further action of the court. Brinkley v. Brinkley, 47 N. Y. 40. Therefore, no appeal lies.

Hor can we entertain the appeal from the affirmance of the order which finally directed that the answers be stricken out, which appeal, indeed, according to the appellants’ position, is directed only to the provision for motion costs, since the order was granted *ex farte,*and no order denying a motion to vacate it is .before us or was before the General Term. Matter of Dunn, 14 N. Y. Supp. 14; 37 N. Y. St. Repr. 802. And see Matter of Peekamose Fishing Club, 5 App. Div. 284.

The appeals must, therefore, be dismissed, with costs.

Beekman, P. J., and Gildersleeve, J., concur.

Appeals dismissed, with costs.