Pindar v. Seaman

New York Supreme Court

Pindar v. Seaman

33 Barb. 140, 1860 N.Y. App. Div. LEXIS 194

CourtNew York Supreme Court

DecidedSeptember 18, 1860

StatusPublished

Cited by1 cases

This text of 33 Barb. 140 (Pindar v. Seaman) 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

Pindar v. Seaman, 33 Barb. 140, 1860 N.Y. App. Div. LEXIS 194 (N.Y. Super. Ct. 1860).

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Opinion

By the Court,

Bonney, J.

This application was made under section 388 of the code. The revised statutes (2 R. S. 199, §§ 21 to 27) provide a concurrent remedy for the discovery of books, papers and documents, but the proceedings in this case are not in conformity with the provisions of those statutes. The rules of the court (14 to 17) regulate the proceedings both under the revised statutes and under the code, but do not and cannot unite or confound the two remedies. (Gould v. McCarty, 1 Kern. 575. Davis v. Dunham, 13 How. Pr. R. 427.) The power of the court in a proceeding under section 388 of the code is defined and limited by that section. In the first instance it may order a party to give, within a specified time, an inspection and copy or permission to take a copy of books, papers and documents. If compliance with this order be refused, the court may then, on motion, “ exclude the paper from being given in evidence, or punish the party refusing, or both.” The feeling between the parties to this action has doubtless influenced in some degree the practice of the attorneys, on both sides. The defendants have given a sworn copy of the contract in question, but offered only a very limited time for examination of the original. The plaintiff has insisted upon a deposit of the original paper with the clerk. The order made at special term is more stringent than appears to us to be authorized or to be proper under the circumstances, and should now be modified so as merely to direct that the defendants, within and for a reasonable time and at some proper and convenient place, to be specified in the order, give to the plaintiff and his attorneys, and to each or either of them, and such other-persons as shall accompany them, respectively, an inspection and opportunity to examine and copy the contract in question, which must however remain in the possession of the defendants. Neither party is entitled to costs against the other of the motion or of the appeal. The order to be settled on two days’ notice.

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By the Court,

Bonney, J.

This application was made under section 388 of the code. The revised statutes (2 R. S. 199, §§ 21 to 27) provide a concurrent remedy for the discovery of books, papers and documents, but the proceedings in this case are not in conformity with the provisions of those statutes. The rules of the court (14 to 17) regulate the proceedings both under the revised statutes and under the code, but do not and cannot unite or confound the two remedies. (Gould v. McCarty, 1 Kern. 575. Davis v. Dunham, 13 How. Pr. R. 427.) The power of the court in a proceeding under section 388 of the code is defined and limited by that section. In the first instance it may order a party to give, within a specified time, an inspection and copy or permission to take a copy of books, papers and documents. If compliance with this order be refused, the court may then, on motion, “ exclude the paper from being given in evidence, or punish the party refusing, or both.” The feeling between the parties to this action has doubtless influenced in some degree the practice of the attorneys, on both sides. The defendants have given a sworn copy of the contract in question, but offered only a very limited time for examination of the original. The plaintiff has insisted upon a deposit of the original paper with the clerk. The order made at special term is more stringent than appears to us to be authorized or to be proper under the circumstances, and should now be modified so as merely to direct that the defendants, within and for a reasonable time and at some proper and convenient place, to be specified in the order, give to the plaintiff and his attorneys, and to each or either of them, and such other-persons as shall accompany them, respectively, an inspection and opportunity to examine and copy the contract in question, which must however remain in the possession of the defendants. Neither party is entitled to costs against the other of the motion or of the appeal. The order to be settled on two days’ notice.

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Bluebook (online)

33 Barb. 140, 1860 N.Y. App. Div. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pindar-v-seaman-nysupct-1860.

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