#### Bridget Kennedy, as Administratrix, Etc., of Thomas Kennedy, Deceased, Plaintiff, *v.*James E. Nichols et al., Defendants.

(Supreme Court, New York Special Term,

January, 1901.)

Discovery — Cannot be invoked to inspect real property — Code C. p., §§ 17, 803 — General Buies of Practice No. 14, subd. 3.

The remedy of discovery and inspection cannot be invoked to compel the defendants in an action to permit the plaintiff to enter upon and examine a part of their premises.

Rule 14, subd. 3 of the General Rules of Practice has no force in so far as it may seem to permit discovery and inspection of any “ property ” which is not evidence in the ease.

*727Motion to compel defendants to allow plaintiff to enter defendants’ premises and make an examination of a part thereof.

John M. Gardner, for plaintiff.

Nadal, Smyth & Carrere, for defendants.

Truax, J.

This is a motion to compel the defendants to allow the plaintiff to enter defendants’ premises and make an examination of a part thereof. The only right of a discovery and inspection is to be found in section 803, Code of Civil Procedure. See 1 Eumsey Pr. 677. It is claimed, however, by the plaintiff that subdivision 3 of rule 14 of the General Buies of Practice, gives the plaintiff the right to the relief asked for on this motion. That subdivision provides that *“*Either party may be compelled to make ■discovery of any book, document, record or any other article under his control, * * * upon its appearing to the satisfaction of the court that such book * * * or property is material to the decision of the action, * * * or is competent evidence in the case, ■or an inspection thereof is necessary to enable a party to prepare for trial.” Section 17 of the Code provides for the making of general rules of practice not inconsistent with the Code. Now, if this rule gives more than the Code, it is inconsistent with the Code, and is of no effect. The words “ discovery and inspection ” have long been known to the law, and, as far as the reported cases show, have been held to relate only to evidence in the case. An application for discovery, said the late Chief Justice Bobertson in Ansen v. Tuska, 1 Bobt. 663, is confined to the examination of adverse parties as witnesses, and the production of books, papers, documents and entries. In such cases the testimony of such parties becomes available directly as evidence in the action, and a copy taken of such records may be produced in the absence of the originals. In the case last cited it was held by the General Term of the Superior Court that the court had no power on motion to compel a party to an action to submit articles which were the ■subject of the action, and were neither books, documents, nor evidence of themselves, to third persons, in order to enable them to qualify themselves to testify as experts, as to the mere quality of such articles. “A final decree,” said the court, “ in an action to compel a party to produce, for the inspection of the prospective *728witnesses of the adverse party, the subject of controversy would be entirely novel.” It is to be borne in mind that in the action above referred to the quality of the article was material to the issue. To’ the same effect is Cooke v. Lalance-Grojean Mfg. Co., 29 Hun, 641. In Miner v. Gardiner, 6 T. & C., 343, an order granting an inspection of books to enable plaintiff to procure expert testimony as to the value of his services in keeping such books was held erroneous. Motion denied, with ten dollars costs to the defendants, to abide the event, on the ground of want of power to make the order for which plaintiff asks.

Motion denied, "with ten dollars costs to defendants, to abide event, on ground of want of power to make order for which plaintiff asks.