White v. Munroe

33 Barb. 650, 1861 N.Y. App. Div. LEXIS 44

• Court: New York Supreme Court
• Decided: February 4, 1861
• Status: Published

Opinion

By the Court,

Clerks, P. J.

I doubt, very much, whether this is an appealable order. If it is made pursuant to § 388 of the code it clearly is not. The very language of the section says the court “may in their discretion” order either party “to give to the other an inspection or copy, &c. of any books, papers and documents," &c.

The section of the revised statutes (§ 30, 2 R. S. 199, marginal) relating to this subject says: “The court shall have power in such cases, as may be deemed proper, to compel any party to a suit pending therein, to Produce and discover books, papers and documents, in his possession or power, relating to the merits of any such suit or of any defense thereon."

Does not this necessarily import a discretionary power in the court to determine, under all the circumstances, whether the case is a proper one for the exercise of the power ? The judge may deem it proper to deny the application, unless the party should be offered an opportunity, by being examined, of accompanying the production with a statement of every thing which is necessary to protect • him from consequences. Or, he may think, as in the present case, where the defendants live in a distant and foreign country, and where the difficulties of examining them under a commission would be very great, that it was eminently proper that they should be compelled to produce, or furnish copies of, the required papers. But this entirely depends upon what the judge, before whom the application is made, may consider proper, in view of all the circumstances of the case.

[New York General Term, February 4, 1861.

Clerke, Sutherland and Allen, Justices.]

It may he a different question if the court, on an application of this kind, granted an order to make a general search and examination for evidence among the private books and papers of his adversary; such as has been called in England an “indefinite search.” But the code and the revised statutes give the power to order the inspection or production of books, papers, &c. relating to the merits of the suit.

It is not denied that, in the cases before us, the papers, of which copies are required, do relate to the merits of the controversy. The objection is made that the motion was a renewal of a previous motion, and that, although the latter was denied without prejudice to renew, the second motion could be made only on new grounds. It is entirely in the discretion of a court to hear a renewal of a motion or not. They can/as they may deem advisable, hear it on precisely the same papers. This of course will be rarely allowed; it would be productive of most serious inconvenience; but, still, there may" be occasions which would render it essential to justice. In'" motions such as these, not appealable, for instance, a grievous wrong may be committed by some misapprehension or inadvertence of the judge; for .which there would be no redress, if this power did not exist.

If even I did not think these cases were not appealable, I should say the orders were properly granted. The appeals should be dismissed with $10 costs in both.