Opinion
April 10, 1914.
William L. Barnett [ Charles M. Sheafe, Jr., with him on the brief], for the appellant.
Thomas J. O'Neill, for the respondent.
The power of the court is prescribed and regulated by sections 803-809 inclusive of the Code of Civil Procedure, and by rules 14, 15 and 16 of the General Rules of Practice. ( Walsh v. Press Co., 48 App. Div. 333; Matter of Ehrich v. Root, 134 id. 437.) The procedure contemplates evidence. ( Woods v. De Figaniere, 25 How. Pr. 522; Merguelle v. Continental Bank Note Co., 7 Robt. 77; Davis v. Dunham, 13 How. Pr. 425; Ahlymeyer v. Healy Bigelow, 12 N.Y. St. Repr. 677; Matter of Ehrich v. Root, supra; Hallenbeck v. Parr, 65 App. Div. 167. ) The documents sought to be discovered are not evidence within the purview of the statute or the rules. It is not enough that the documents suggest or may furnish a clew to evidence. ( Woods v. De Figaniere, supra; Morrison v. Sturges, 26 How. Pr. 177; Walsh v. Press Co., supra.) The burden was upon the plaintiff to establish a condition that would have justified the order. ( Beyer v. Transit Development Co., 139 App. Div. 724.) The fact that the plaintiff is a representative of the deceased does not afford to her any further or additional rights. ( Merguelle v. Continental Bank Note Co., supra.)
The order, in so far as appealed from, is reversed, with ten dollars costs and disbursements.
BURR, THOMAS, CARR and RICH, JJ., concurred.
Order, in so far as appealed from, reversed, with ten dollars costs and disbursements.