#### William J. W. Finlay, App’lt, *v.*Richard B. Chapman, Resp’t.2

*(Court of Appeals,*

*Filed February 25, 1890.)*

Appeal—Discovery of books of account—Court of appeals no power. TO REVIEW ORDER DENYING.

An application to compel a party to produce and discover Looks of ac*580count, etc., upon a trial rests in the sound discretion of the special term, subject to review by the general term, and this court has no power to review such an order.

Appeal from judgment of supreme court, general term, third department, affirming order of special term denying application of plaintiff to compel defendant to produce private books of account, etc.

*Louis*Hasbrouck, for app’lt; *John M.*Kellogg, for resp’t.

2

 See 26 N. Y. State Rep., 983.

O’Brien, J.

This action is brought by the plaintiff as assignee of a residuary legatee and devisee of Augustus Chapman, deceased, against the defendant, Richard B. Chapman, as the sole .surviving executor and trustee under the will, to set aside certain conveyances of real property belonging to the estate, alleged in the complaint to have been fraudulent, and for an accounting of the profits and use of the estate moneys, and for other purposes, the action being very broad in its general scope and purpose.

After issue was joined, the case was referred and partially tried. During the trial the defendant became seriously ill, and it is alleged, and seems to be conceded by both parties, that there is no hope of examining him further as a witness. But the general account books and bank pass book, in which the defendant kept the .accounts relating to the estate of which he was the executor, seem to have been produced upon the trial, and an examination of their contents made on the part of the plaintiff.

After the illness of the defendant the plaintiff made an application at special term to compel the defendant to produce and discover to the plaintiff certain of his individual and private books of account, demanding that the court order them to be delivered to a referee with the right to the plaintiff to inspect the same and take copies thereof. On the part of the defendant affidavits were read at the special term whereby it was attempted to show that the discovery was unreasonable or unnecessary. After hearing the parties the special term denied the application, and the order having been affirmed by the general term the plaintiff appeals to this court

Whether the application ought to have been granted rested in the sound discretion of the court at special term. The general term had power to review the exercise of that discretion and to reverse the order if it was of the opinion that the merits of the motion were of such a character as to require the granting of the application.

We think that the controversy must end with the decision of the general term. The granting or withholding of the order for discovery was a matter of practice subject to the discretion of the supreme court, and this court has no power to review such an order, Code, § 190; *Clyde*v. Rogers, 87 N. Y., 625; *Stilwell*v. *Priest,*85 id., 649; *Jenkins*v. *Putnam,*106 id., 272-276; 8 N. Y. State Rep., 710; *Glenney*v. *Stedwell,*64 N. Y., 120-128.

The appeal should be dismissed, with costs.

All concur.