The record-union., 1897-09-11


Of New York upon this subject, and the
rights Of litigants. under this provis-
ion of the statute, are clearly marked
and established in that State The most
satisfactory and learned discussion on
this proposition which / have been able
TO find, either in the decisions or from
the teXt-writers, is that of Mr.. Wait
in the second volume of his work on
Civil Practice, page 5-3. After a some
What lengthy and general discussion OF
the rights of parties litigant to discov-
cry and inspection under the above
quoted section of the statute of New
York, the author says: 1T is a general
rule that q discovery will not be grant
ed unless the court is satisfied that
the discovery is pertinent and material
TO the claim or defense of the party
seeking the remedy. Thus the right
of a plaintiff in equity does not extend
to the discovery of the manner in which
the defendants case is to be estab-
lished, or to the evidence which relates
exclusively to his case So, the right
of a defendant TO a discovery is con-
fined to the claims which form a
part of his case. And it is a general
rule that neither party to an action is
entitled to search the other party s
papers with view of finding out some
defect in the case put forward by him,
nor Of enabling him to rebut the an
ticipated case of the other party But
his right is confined to an inspection
of those papers. and those only, that
may directly or Indirectly support the
case on which he himself relies" (Sec-
ond vol. Waits Practice, p. 531)
Meakings VS.. Cromwell. l Sand, Cos;
Breevort VS.. Warner, How, 321;
Shadwell VS.. Shadwel, 6 c. B. n. S,
go; Daniel VS.. Bond, c. B. N. S.,
T16; Scott VS.. Walker, 2 Ell. and Bl.,
900.
Since the publication of Ma Waits
treatise on this subject, which was in
1873, many decisions have been rem
dered by the Supreme Court and Court
of Appeals of the State Of New York,
sustaining the text last quoted, and
among them the following cases are
cited: Morrison VS.. Sturgis, 20 How.
Pr, III; Brownell VS.. National Bank,
20 Hun, OH; Hayden VS.. Van Court
landt, so Hun, $50; Stichler VS.. Thing
hast, II N. Y. Civil Procedure and Rep.
Alb; Holts VS.. Schmidt, > ]. & s, % GA
n. Y. Superior Court Reports, 2S); Mer-
gelle VS.. Bank Note Co, I Rob On. V,
II; Woods VS.. De Figaniere, l Rob. On.
", 6S1; Hare on Discovery, Sd Am.
Ed, 1917.
Continuing, Mr. Wait says: 1T has al
ways been a rule of practice that the
production of writings will not be en-
forced where it does not appear that
this remedy is indispensably necessary
and not simply a mere precautionary
measure" "If the discovery
is plainly attainable by competent and
available testimony other than that of
the parties, and the object of the appli-
cation is to obtain evidence for the
trial, a production of books should not
be allowed without special circum-
stances; and if it is attainable by Nan
examination of the party as a witness,
it should be refused except upon some
special grounds appearing to the con-
trary." CWait's Practice, 532-3) Com
mercial Bank VS.. Durham, 13 How,
541. Pegram VS.. Carson, 10 Abb, $40.
The same learned author also says:
Whether a discovery is sought under
the provisions of the Revised Statutes
discovery is sought in aid of pleading,
or for the purpose of evidence on the
trial, the ground for the application
must be that the party from whom
the discovery is sought has in his pos
session or power, books, papers and
documents containing evidence relat-
ing TO the merits of the suit, or to the
defense therein It is not
enough that the party seeking the dis
covery believes or is advised that the
paper contains material evidence; the
fact must be shown to the entire sat
isfaction of the court before the order
can issue. In order to satisfy the
court of the materiality Of the evil
dence, the facts and circumstances up
on which discovery is claimed must
be set forth in the moving papers"
Waits Practice, page $50 and author
tiles cited.
In addition to the authorities cited
by the author in support of the above
rule, the following cases will be found
in point:
Walker VS.. The Granite Bank, A
Barb, 80; Hayden VS.. Van Courtlandt,
81 Hun, $50.
In Walker against the Granite Bank,
supra, Justice Ingraham of the
Superior Court of New York, thus
states the rule: AN application for
discovery of books and papers must
satisfactorily state what information
is wanted, and that the books or papers
referred to contain such entries, and
this must be stated upon positive in
/ formation, and not on mere information
and belief"
In the case of Hayden VS.. Van Court
landt, supra, the application was fol
inspection Of marks and symbols upon
a boundary tree, and permission to &C
upon the premises and cut the tree suf-
fciently to disclose and examine the
marks alleged in the moving papers tC
be thereon. The affidavit upon which
the motion was based set out in detail
the information upon which the plain
tiff based his belief that the tree con-
tanned the marks claimed by plaintiff
by giving the names of the surveyors
who, it was claimed, made the original
survey of the land in dispute, and who
it was alleged, made the marks on the
tree and also stated that the plaintiff
had interviewed said surveyors, ana
was informed by them that an exam
inatiOn Of said trees would disclose the
marks and symbols. Justice Putnam
/ who delivered the opinion of the court
February term, 1895. reviewed care
fully the affidavit of plaintiff upon
which the motion was based, and con-
cluded that plaintiff was not entitled to
the inspection, because his affidavit did
not state positively that the tree con-
tanned the marks, but. on the contrary