Kaupe v. Isdell

3 Rob. 699

• Court: The Superior Court of New York City
• Decided: February 15, 1865
• Status: Published

Opinion

Robertson, Ch. J.

This is an application for the privilege of examining certain hooks of account kept by a firm represented by “ Samuel T. Scarlett, agt.” in the possession of the defendant, Reuben Isdell.

The necessity of such examination is alleged to be that such books will show that the defendants are partners; that they contain entries of moneys received and paid by the defendant, Reuben Isdell, and statement of his account. The plaintiff, Cummings, it is true, also swears they are material and necessary to examine previous to the trial, as he is informed by his counsel, and to prepare for such trial, and that he cannot avail himself thereof without an order of discovery.

The- plaintiff is mistaken in supposing that he cannot have •the benefit of any entry in any of such books tending to prove his case without a discovery. A subpoena duces tecum will compel the production, on a trial, or examination of the parties before. The affidavits do not allege the character of a single entry, which the court can determine to be material. Parties cannot substitute their own judgment, on vague information, the nature and source of which they do not disclose, for that of the court; enough must be shewn to enable it to decide that the discovery is necessary, which is not done on the face cf these papers.

The motion must be denied, with seven dollars costs.