McInnes v. Gardiner

27 Misc. 124, 57 N.Y.S. 356

Opinion

Giegerich, J.

The application for discovery is based solely upon the allegation in the answer upon information and belief that plaintiffs’ intestate contrary to agreement, sold paints to other persons at a lower price than that given to the defendant," and discovery is sought merely because the books’ would show the sales to such other persons. Nothing is presented in support of the proposition that the sales thus made were in fact at a lower price, and it would certainly appear that the object of the. discovery is solely to obtain information as to whether or not the allegation of the answer is true, and under these- circumstances, the motion may not .be granted. Dickie v. Austin, 4 Civ. Pro. 123. Moreover,'it appears that the books are not in this country. The application for a commission is granted. Plaintiffs’ diligence and good faith seem apparent, and I find no reason for the imposition of terms.". Motion for discovery denied, with $10 costs. Motion for commission granted, without costs.;

Ordered accordingly.