The record-union., 1897-09-11

! A collation. of authorities upon the
general proposition in this application
involved will be found in the brief of
counsel of respondent in the case Of
| Finley VS.. Chapman, 119 n. Y, 404.
The Court of Appeals, however, in that
case. refused to consider the merits
/ therein, upon the ground that the
granting or denying an application Of
discovery and inspection rested in the
sound discretion of the Supreme Court,
which discretion would not be reviewed
on appeal in the absence of a fragrant
violation thereof
From the foregoing rules and author
tiles it would appear that plaintiff 5
motion should be denied for several
reasons, viz:
First - Because plaintiffs moving
papers in this behalf are based ex-
clusively upon information and belief
Second-Because said moving papers
do not disclose that the evidence which
plaintiff seeks to discover, and which
/ he contends is contained in the docu
ments of which inspection and copy is
sought, is absolutely necessary to the
maintenance of his cause of action set
out in the complaint. and that he is
unable to obtain the same from any
other source. That is to say: 1t does
not appear from said moving papers,
/ but that plaintiff can obtain the testi-
mony, at the trial, of the persons who
made the reports and affidavits to the
! defendants, and of which inspection is
sought.
Third-The answer of the defendants
admits the publication of the article set
out in the complaint and therein al
I legged TO be libelous, therefore the evil
dence sought to be discovered
/ by the application, of necessity
must be for the purpose of
+ disclosing the nature of the
+ defendants defense. and informing
/ plaintiff whether or not defendants will
at the trial, be able to establish such
defense Discovery and inspection are
granted solely for the purpose of aid
| ing the party seeking the same, in
proving his own case, and not for the
purpose of enabling the moving party
to learn something concerning the case
of his adversary or a defect therein.
! FOurth-The moving papers offered in
support of this motion do not disclose
that the document of which inspection
! is sought, contains evidence relating to
the merits of plaintiffs case. 1t does
appear however. from the argu-
ments of counsel, that said documents
consist entirely of reports and affidavits
| made by certain agents and employees
! Of the defendants. concerning an al
/ legged illegal combine, with which plain
! tiff contends he has been mentioned in
d hbelous manner in the article COM
planned of How it can be successfully
cOntended that these affidavits and re-
ports contain any evidence at ALL much
! less any material evidence relating to
the merits of plaintiffs case am un-
able to say. AT best they can only be
used by their respective authors, While
a witness on the stand, to refresh his
memory as to the statement of facts
| therein contained and under the rules
/ governing the production of evidence
| in courts of justice, said affidavits and
/ reports are not admissible, as evil
dence, in this case.
| 1t is not considered necessary by the
court to discuss other objections in
/ terposed by the defendants to the
| granting of plaintiffs application. 1t
might be said, however, that it seems
| to be the rule in States where a similar
! provision is found in their Code of
/ Civil Procedure, that a discovery or
| inspection of documents is never al
| lowed in actions of libel. This certainly
was the rule under the old Chancery
practice, where the relief sought in this
application was obtained by what was
known as a bill of discovery. 1t would
appear that the same reasons exist to-
day as then existed for denying a dis
covery in actions of libel (Opdyke vs..
Marble, A Barb. 64. ? Waits Pr.
53S)
| Let an order be entered DENYING
plaintiffs application for inspection,
etc.
Dated September TO- 1897
JOSEPH w. HUGHES,
! Judge of the Superior Court.