Miller v. Mather

5 How. Pr. 160

• Court: New York Supreme Court
• Decided: July 15, 1850
• Status: Published

Opinion

Edmonds; Justice.

The objection to the discovery sought in this case is that an issue is not joined. I can discover nothing in the Code which confines the discovery within the limits claimed.

On the other hand, the discovery here sought is a substitute for the former bill of discovery in equity in aid of an action at law and such bill might be filed at any time after the action at law was commenced, and indeed in certain cases, namely, where the discovery sought was in reference to whom ought to be parties, even before suit brought.

It would be clearly improper to limit the discovery under the present beyond what it was under the old law, unless the statute plainly required it.

The order for a discovery must therefore be enforced.