New York Bank Note Co. v. Hamilton Bank Note Engraving & Printing Co.

5 A.D. 126, 39 N.Y.S. 86

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1896
• Status: Published

Opinion

Per Curiam :

The only objections taken by the appellant to this order, is that the court below has not power to order a discovery of letter-press copies of letters; second, that the discovery is improperly granted of documents of which the moving party has copies. The application is for a discovery of letters between the two defendants. It is necessary for the plaintiff to prove upon the trial that the defendant, The Hamilton Bank Note Company, had knowledge of the contract between the plaintiff and The Kidder Press Manufacturing Company. The Kidder Press Manufacturing Company is a Massachusetts corporation; its papers and documents are in the State of Massachusetts, and not within the jurisdiction of this court; and the plaintiff has endeavored to obtain proof of these letters by a commission and has failed to prove them by competent evidence. The application is to procure the discovery of documents that will be material and necessary evidence upon the trial, and it is quite apparent that it will be impossible to compel the production of the letters which are in Massachusetts by a subpoena duces tecum, and the plaintiff should not be placed in a position where it may be met upon the trial by an objection to the production of the letters by*the defendant, The Hamilton Bank Note Company, on the ground that the proper officer was not served with a subpoena, that the letters had been removed beyond the jurisdiction of the court, or by any of the other usual obstacles which are thrown in the way of a party endeavoring to obtain documents in the possession of his adversary. The original letters in the possession of the defendant, The Hamilton Bank Note Company, are clearly competent evidence. The letter-press copies of the letters written by The Hamilton Bank Note Company to The Kidder Press Company, would be competent evidence if a notice had been given to the defendant, The Kidder Press Company, to produce the originals, which was not complied with, and the copies were properly proved. These letters and copies of letters are clearly papers or documents in the possession or under the control of the appellant, and are material to the decision of the action, competent evidence in the case, and thus clearly within subdivision 3, rule 14 of the General Rules of Practice.

The appellant does not deny in the affidavit submitted in opposition to this motion that it has these letters and letter-press copies in its possession, and we think the court below was clearly justified in granting the motion.

Order appealed from affirmed, with ten dollars costs and disbursements.

Present — Barrett, Rumsey, Williams, Patterson and Ingraham, JJ.

Order affirmed, with ten dollars costs and disbursements.