Peck v. Peck

New York Supreme Court

Peck v. Peck

57 Misc. 94, 107 N.Y.S. 925

DecidedDecember 15, 1907

StatusPublished

This text of 57 Misc. 94 (Peck v. Peck) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Peck v. Peck, 57 Misc. 94, 107 N.Y.S. 925 (N.Y. Super. Ct. 1907).

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Opinion

Giegerich, J.

Hpon the undisputed facts shown -the petitioner is clearly entitled to a discovery and inspection of the deed in suit. It is objected by the defendant that since a summons only has been served the plaintiff is not entitled thereto, under the decision in Rhoades v. Schwartz, 52 App. Div. 379. In that case it was held that a discovery and inspection could not be had, because it was not made to appear that the defendant intended to rely upon the deed or document sought to be inspected for its defense, and that unless it were so made to appear it could not be said that it was necessary for the petitioner to have an inspection of that document. In the present case the materiality of the deed distinctly appears from the motion papers, which deed the plaintiff seeks to have set aside for fraud. It is the only document involved in the litigation, and, therefore, the plaintiff should have such discovery and inspection so that she may be able to show in her complaint whether or not that paper bears her signature or whether it was used under the circumstances charged in her moving affidavit. The motion is, therefore, granted, with ten dollars costs. A referee will be named on the settlement of the order to direct and superintend the discovery and inspection.

Motion granted, with ten dollars costs.

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Giegerich, J.

Hpon the undisputed facts shown -the petitioner is clearly entitled to a discovery and inspection of the deed in suit. It is objected by the defendant that since a summons only has been served the plaintiff is not entitled thereto, under the decision in Rhoades v. Schwartz, 52 App. Div. 379. In that case it was held that a discovery and inspection could not be had, because it was not made to appear that the defendant intended to rely upon the deed or document sought to be inspected for its defense, and that unless it were so made to appear it could not be said that it was necessary for the petitioner to have an inspection of that document. In the present case the materiality of the deed distinctly appears from the motion papers, which deed the plaintiff seeks to have set aside for fraud. It is the only document involved in the litigation, and, therefore, the plaintiff should have such discovery and inspection so that she may be able to show in her complaint whether or not that paper bears her signature or whether it was used under the circumstances charged in her moving affidavit. The motion is, therefore, granted, with ten dollars costs. A referee will be named on the settlement of the order to direct and superintend the discovery and inspection.

Motion granted, with ten dollars costs.

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Bluebook (online)

57 Misc. 94, 107 N.Y.S. 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peck-v-peck-nysupct-1907.

Opinion

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