Moore v. Encyclopaedia Britannica Co.

43 Misc. 618, 88 N.Y.S. 133

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1904
• Status: Published

Opinion

Leventbitt, J.

This is an appeal from an order denying an inspection of an alleged written agreement.

The plaintiff sued for damages for an alleged unlawful discharge under a yearly agreement of employment. As a separate defense the defendant pleaded that the original agreement was abrogated in the course of the year and that a new •contract in writing between the parties was made. The plaintiff after demand made a motion to compel inspection cf this alleged new written contract and from a denial of his motion takes this appeal. The moving papers show that he has no knowledge of any such contract, has no copy in his possession or under his control, and he specifically denies that he ever entered into such a contract. There are the usual allegations of materiality and necessity. On these "facts he was entitled to an- inspection. It is an old and well-•settled rule that the remedy extends to all evidence of a documentary nature, relating to the merits of the action, whether ■on the part of the plaintiff or the defendant. Townsend v. Lawrence, 9 Wend. 458. Where it appears that the plaintiff has no copy of a contract which is in the possession of the defendant, an order for inspection is proper. Smith v. Seattle, Lake Shore & Eastern R. R. Co., 41 N. Y. St. Repr. 672; New York Bank Note Co. v. Hamilton Bank Note Co., 5 App. Div. 126. Under the Code provisions and the special authority of rule 14 of the General Rules of Practice the plaintiff was entitled to the relief sought.

Fbeedmait, P. J., and Gbeekbatjm:, J., concur.

Order reversed, with costs, and motion granted.