#### Charles F. Livermore *et al.*plaintiffs and respondents, *vs.*Newton St. John, defendant and appellant.

1. Upon an application by a defendant, by petition, for a discovery of the contents of a letter written to him by the plaintiff, and his answer thereto, written on the same paper, which are in the plaintiff’s possession, where such petition shows that they contain evidence that the plaintiff has no legal demand against the defendant, a discovery of them will be granted, when the allegation is not controverted hy the plaintiff.

2. A letter, and an answer thereto, resemble a conversation; so that if a part is given in evidence, by one party, the other party is entitled to have the whole introduced.

(Before Momim, Garvin and Jobes, JJ.)

Heard February 5, *1866;*

decided March 12, 1866.

The defendant presented his petition to this court, duly verified, setting forth that an action had been brought against him by the plaintiffs, for the breach of a contract, for the sale hy him to them of certain United States demand notes ; that the complaint alleged that before the time of jjerformance arrived, the defendant made a further agreement with the plaintiffs to pay them a certain sum in cash, *and a further sum whenever he should be able to pay the same;*and that the first mentioned contract was thereupon given up. The petition farther stated, that a letter was written hy the plaintiffs to the defendant dated November 12, 1864, to which the defendant immediately wrote an answer on the same paper, and sent both to the plaintiffs, and did not preserve a copy of either.

*13The petition then alleged, that the said letter of the plaintiffs “ contained evidence that the plaintiffs then had no legal demand against your petitioner, and the letter sent in answer there, contains evidence to the same effect.”

The petition prayed for a discovery of said two letters.

It appeared, on the motion, that the plaintiffs had made discovery of the letter of November 12, 1864, written by them to the defendant, but refused to discover the answer thereto. ■

The motion was denied at special term, and the defendant appealed.

*Charles Tracy,*for the appellant.

I. The letter written by the defendant is material to his defense, and to his preparation for trial. It was written immediately upon the receipt of the plaintiffs’ letter, was in answer thereto, and was written upon the same paper. They contain evidence that the plaintiffs at that time (November 12,1864,) had no legal claim or demand on the defendant.

II. The statements of the defendant’s petition, to that effect, not being denied by the plaintiffs, who could deny them if not true, are to be taken as fully established, for all purposes of the motion. *(Union Bank*v. *Mott,*9 *Abb.*106, 109.)

III. And are confirmed by observing the course taken *by*the plaintiffs in respect to all the documents. At first the plaintiffs refused to discover any of them. After being served with the petition, they furnished one. And still later, just before the day noticed for the motion, furnished another. But they withhold to the last the third, evidently deeming it the most important of the three for the defendant. (*Whitney*v. *Sterling,*14 *John.*215. *Jackson*v. *MeVey,*18 *id.*330. *Barber*v. *Lyon,*22 *Barb.*622.)

IV. Parties may use their own letters in evidence, if written in reply to letters received from the opposite party, especially if written as immediate answers. They are like answers in conversation. The fact that the letter was written by the defendant, does not exclude it; it having been written to and received by the plaintiffs. A party may often put his own *14letter in evidence at the trial, which has great effect by relation to letters that precede or' follow it. *(Roe*v. *Day,*7 *Carr. & Payne,*705.)

V. The letter being admissible on the trial, the question as to whether it contains such evidence as to make it necessary for the defendant to have a copy before going to trial, must be determined, in the absence of the letter itself, by the sworn papers used on the motion. The petition and affidavit show that this letter is necessary for that purpose. There is nothing to oppose this showing, although the plaintiffs furnished an affidavit on another point. *(Lefferts*v. *Brampton,*24 *How.*257, 261, 262. *Pegram*v. *Carson,*18 *id.*519, 521.)

VI. The proceedings of the defendant by petition conform to the Revised Statutes and the rules of court; and the notice added to the petition gives him the benefit of the provisions of the Code in such cases. (2 *R. S.*199, §§ 21-24. *Rules of Supreme Court,*14, 16. *Code of Procedure,*§ 388. *Gould*v. *McCarthy,*11 *N. Y. Rep.*575.)

*E. R. Robinson,*for the respondents.

• I. The discovery was properly denied, because : (1.) The petition does not show that the letter contains evidence relating to the merits.

*(a.)*It does not state the contents of the letter, nor any part thereof, or contain any suggestion with respect to them, so as to enable the court to determine their materiality. The general allegation, that the petitioner is advised by his counsel, and believes that his own letter “ contains evidence that the plaintiffs then had no claims against him,” is entirely insufficient. *(Per Robertson, J. Woods*v. *DeFiganiere,*1 *Rob.*681, 687.) “It is not enough that the party believes, or is advised that the paper contains material evidence. *Facts must be shown*to support such belief.” *(Per Monell, J. Morrison*v. *Sturges,*26 *How. Pr.*177. *See also Hoyt*v. *The Am. Exc. Bank,*1 *Duer,*652; *Cassard*v. *Hinman,*6 *id.*695; *Pegram*v. *Carson,*18 *How. Pr.*519; *S. C.*10 *Abb. Pr.*340.)

(2.) The petition does not show that the defendant does not *15possess the means of proving, by other 'competent evidence, that “ the plaintiffs then had no legal claim against- him,” An ability to prove the same matters by living witnesses is not negatived. Some allegation of this nature is indispensable. (Per *Hoffman, J. in Pegram*v. *Carson, supra, p.*346. *Woods*v. *De Figaniere, supra, p.*688.)

(3.) The petition does not show that the letter contains evidence relating to the merits which the petitioner- could ever use. It shows exactly the reverse, viz. that the letter was written by the petitioner himself, and could not, therefore,- be given by him in evidence. *(Towle*v. *Stevenson,*1 *John. Cas.*110.) It does not appear from the petition that the plaintiffs’ letter, to which the letter in question is alleged to be a reply, would be evidence in the defendant’s favor. Even if it would, that would not make the defendant’s reply to it, evidence in the defendant’s own favor. It is an exception to the general rule, unsupported by authority, and a monstrous proposition, that the mere circumstance of writing to a man gives him the privilege not only of using the letter written him, but of manufacturing written evidence in his own favor. The letter, if evidence at all, is evidence for the plaintiffs alone, and a discovery for the purpose of the trial has never yet been extended to the papers which the other side alone can use. *(See authorities cited, supra, and also Strong*v. *Strong.)*The counsel on the other side may say that it would become evidence for the defendant in case the plaintiff put his own letter in evidence, to which this is a reply. True; but the plaintiff has no right to put his own letter in evidence ; it is not competent evidence for him ; and the counsel, on the other side, has no right to assume that he would do what he has no right to do. In *Poe*v. *Day,*(7 *C. & P.*705,) a letter from the plaintiff to the defendant was read *by the plaintiff,*and the court allowed the defendant to read his reply. Here the proposition is, that the defendant may first read the plaintiffs’, own letter, and then read his own reply, making the plaintiffs’ letter, read by himself) the basis on which he may introduce his own declaration.

*16Eo one would be safe were this allowed. As soon as a man receives a letter, no matter how trivial, he would immediately proceed to answer it at length, so as to create evidence in his own favor.

By the Court,

Monell, J.

I was inclined on the argument, to think that enough did not appear in the petition, to enable the court to judge whether the letter sought to be discovered, contains evidence legally relating to the defense. Its contents were not stated or attempted to be described, and the bare statement that it contains evidence, to the effect that the plaintiffs had no legal claim against the defendant, is perhaps a legal conclusion which may be drawn from tire contents of the letter, when it shall have been produced. But it did not put the court in possession of any fact. In cases where a discretionary power is lodged in a court, the exercise of such power must have a foundation of facts; and the mere assertion of a fact, without the history or detail of circumstances upon which it is based, is not generally deemed sufficient. It is a mere assertion of a conclusion derived from a detail of circumstances which are not stated.

In this case, however, the allegation is not upon information and belief, but positive that the paper contains evidence showing, or tending to show, that the plaintiffs have no legal claim against the defendant. Besides, the allegation is not controverted by the plaintiffs, who, if the fact was otherwise, could have denied it on the motion. Therefore, for the purposes of the motion, I shall regard the allegations in the petition as sufficient, if. otherwise the defendant is entitled to the discovery.

The letter of which discovery is sought, was written by the petitioner to the plaintiffs, in answer to a letter written by the latter to the former ; and it is objected that such a letter cannot be given in evidence by the defendant. It is true that the statute contemplates a discovery of such documents or papers only, as a party would be permitted to produce in evidence in his own behalf on the trial. *(Meakings*v. *Cromwell.*1 *Sandf.**17698.) Books or papers which would not he evidence for him, • and only evidence against him, are not, it seems, the subjects of discovery; although in one case, *(Powers*v. *Elmendorf,*4 *How. Pr.*60,) it is held that such discovery may be had when one party desires to ascertain what documentary evidence his adversary has upon which he is relying to sustain himself upon the trial.

It is not disputed that if, in any aspect the case may assume, the letter in question may become competent evidence for the defendant, it is proper it should be discovered to him.

There are many cases where the acts and declarations of a party may be proved in his own behalf; such as acts of avoidance or disaffirmance ; or an acceptance of, or a refusal to accept an offer. In these cases, where the thing to be avoided or disaffirmed, or the offer which is to be accepted or refused, is proved, the other party may always give in evidence his act or declaration to disprove the case made against him, It is upon the same principle that the whole of a conversation or declaration may be called for by .a party who is sought to be charged by a part only. These principles are too familiar to need illustration.

Presumptions are frequently raised against a party by his positive act as well as by his silence. The payment of an account is presumptive evidence of its correctness against the party paying; and even the retaining an account for a considerable time, implies its acceptance, and is sufficient to make it an account stated. *(Lockwood*v. *Thorne,*11 *N. Y. Rep.*170.)

It is not difficult to conceive a number of instances where, in this case, the paper sought to be discovered may be material and competent evidence. Suppose the plaintiffs* letter to the defendant should be offered, to show a notice necessary to be given; or, an offer of some kind ; or the assertion of some material fact. From the silence of the defendant, on the receipt of such a letter, every legal presumption would arise against him, and it might become highly important, as well as *18eminently proper, that he should be allowed to remove such presumption, by the proof of his act of disavowal.

The declarations of a party cannot, as a general thing, be used in his own behalf, but when made in the presence and hearing of the other party, they are always admissibl e. *(Thomas*v. Mills, 4 *E. D.*Smith, 75. *Jewett*v. *Banning,*21 N. Y. *Rep.*27.) A letter and an answer thereto, is not unlike a conversation. If part is given in evidence by one party, the other party is entitled to have-the whole given. *(Bronson*v. *Wiman,*8 *N. Y. Rep.*182.)

I do not think there is. any reason in this case, for refusing to exercise the powers of the court to compel a discovery of the letter of the defendant now in the possession of the plaintiffs. It may be competent evidence for the defendant on the trial, and he ought not to be deprived of such evidence by the mere arbitrary refusal of the plaintiffs to produce it.

For these reasons I am for reversing the order.

Order reversed.