Vance v. Andrews

2 Barb. Ch. 370, 1847 N.Y. LEXIS 295

Opinion

The Chancellor.

The bill in this case shows that the complainant has a good cause of action against the defendant, in the suit at law, and that the discovery sought for is material to enable the complainant to succeed in that suit. In such a case it is not necessary, in a simple bill of discovery, except for the purpose of obtaining an injunction, for the complainant to allege that he cannot establish his right at law without a discovery from the defendant.

Footnotes

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(a) But even for the purposes of an injunction the facts stated in this bill appear to oe sufficient. For the expense of executing a commission in Ireland would probably far exceed the costs of a bill of discovery. And where the defendant compels his adversary to incur such an expense by refusing to admit the acceptance of the bill, he cannot rightfully complain if he is compelled to put in an answer to the bill and make the required discovery, even at his own expense.

The order appealed from must be affirmed with costs.

See March v. Davison, (9 Paige's Rep. 580; Welf. Eq. Plead. 119; Wigram on Disc. 4, 5.