Opinion
December, 1906.
Max D. Josephson, for appellant.
Samuel D. Lasky (Edward J. Keinfeld, of counsel), for respondent.
The action is to recover $1,125 for royalties. The answer denies any knowledge or information sufficient to form a belief as to the allegations of the complaint, and then sets up two separate and distinct defenses, viz.: 1, a release in writing under seal from the claim in suit, and, 2, an agreement whereby plaintiff accepted a certain corporation as debtor in place of defendant. Plaintiff, denying that he had ever made such a release or agreement, made an application for a discovery and inspection of the alleged instrument or instruments set up in said defenses. This motion was denied, and from the order denying the same plaintiff appeals. As a general rule a discovery will not be granted, unless the court is satisfied that such discovery is pertinent and material to the claim, or defense, of the party seeking the remedy, and that the documents to be inspected relate to the position taken by the applicant and not that of the opposite party. Sanger v. Seymour, 42 Hun, 641; Bailey v. Williams Mfg. Co., 9 N.Y. St. Repr. 518, City Court decision by McAdam, J.; Stichter v. Tillinghast, 43 Hun, 95. In the case at bar the defendant claims that the alleged release and agreement relate to the position taken by the defendant and not that of the applicant, who has merely to establish his claim for royalties. It has been held by the late Justice Barrett that, where a party in his pleading sets up a document going to the merits of the action, interweaving it with his case, his adversary, if ignorant of it, is entitled to a discovery and inspection of it, when necessary to enable him to prepare for trial, and that a discovery and inspection should not be refused merely because the document sought to be inspected is not necessary to establish the applicant's case, but is only sought to be inspected in order to ascertain his adversary's evidence. Seligman v. Real Estate Trust Co., 20 Abb. N.C. 210. In the case at bar, the alleged documents, if genuine and valid, form a complete bar to plaintiff's cause of action. It is, therefore, most important to plaintiff's case that they should be shown to be ineffective. At present he knows nothing whatever about them, except that he never signed any such release, or agreement, as claimed in the answer. If he is forced to trial, without the inspection sought, he may be subjected to a surprise that will place him at a great disadvantage and render it very difficult for him to meet the defendant's evidence. Plaintiff urges that on inspection he may discover forgery, or that the alleged documents were executed by some one claiming to have authority to execute them in his name. It does not appear that defendant will be prejudiced by such inspection. If he has a complete bar to plaintiff's suit in the shape of a release or agreement, how can he be unduly hurt by showing the document to plaintiff now? If, on the other hand, the document is a forgery, or not authorized, or invalid, plaintiff should have an opportunity to prepare to contest it at the trial. It seems to us that the learned court below, in the exercise of a wise discretion, should have granted the application.
The order appealed from is reversed, with ten dollars costs and disbursements, and the motion for a discovery is granted, with ten dollars costs.
FITZGERALD and DAVIS, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion for a discovery granted, with ten dollars costs.