Hauseman v. Sterling

61 Barb. 347, 1872 N.Y. App. Div. LEXIS 42

Opinion

By the Court, Ingraham, P. J.

It has become the uniform practice, in this district, to refuse applications to compel the production of books and papers, on the examination of a party, before trial. There is nothing in the Code to warrant it, and we think the practice prevailing here is the correct one.

The case of Brett v. Bucknam, (32 Barb. 655,) was under an order directing the production of books and documents. Even if that decision is correct, it does not authorize a' subpcena duces tecum, on such an examination; and if necessary, we should be disposed to overrule that case.

The statute has pointed out the only mode by which a discovery of books and papers can be obtained before trial. To do so, the party applying must not only show what he wants, but must also prove that he cannot obtain the information elsewhere. If he can get his adversary’s books and papers, to be examined by him before trial, in the mode proposed in this case, it would render the statutory provisions on this subject entirely nugatory. If either party wishes to obtain a discovery of books and papers in possession of Ms adversary, he must adopt the course provided by statute.

[First Department, General Term, at New York, January 1, 1872,

Order affirmed.

Ingraham, P. J., and Geo G. Barnard, Justice.]