Summary
In Press Publishing Co. v. Star Co. (33 App. Div. 243) it was said: "Its object is that if a reference to the books becomes necessary during the examination either to corroborate or contradict a witness or to make the proof preliminary to the introduction of the books in evidence upon the trial, such proof may be made and the books may be referred to for that purpose.
Summary of this case from Matter of ThompsonOpinion
August Term, 1898.
B.F. Einstein, for the appellants.
James W. Gerard, Jr., for the respondent.
Present — VAN BRUNT, P.J., BARRETT, RUMSEY, O'BRIEN and McLAUGHLIN, JJ.
The important fact in the case, and the one which must be proved by the plaintiff to entitle it to recover, is that the Star Company is not the publisher of the Morning Journal and Advertiser, but that that paper is published, in fact, by the Morning Journal Association, and that the arrangement between the Star Company and the Morning Journal Association is a collusive one to enable the Morning Journal Association fraudulently to control the privileges of membership of the Associated Press formerly held by the Star Company. The facts shown upon the application for an order for the examination of the officers of the Morning Journal Association tend strongly to prove these facts, but it is clear that conclusive proof of such an arrangement can be obtained only by the examination of the officers of the association who made the arrangement and who are now engaged in carrying it out. The case is clearly one, therefore, within section 872 of the Code of Civil Procedure and the plaintiff is entitled to examine the officers of the defendant association, because it is quite evident that the precise facts can be ascertained from no other source.
The officers who are to be examined state in their affidavits that they intend to be present upon the trial of the action; but such an intention does not affect the right to an examination before trial. ( Presbrey v. Public Opinion Co., 6 App. Div. 600. )
The objection to the production of the books is not well taken. That portion of the order is authorized by the 7th subdivision of section 872 of the Code of Civil Procedure. Its object is that if a reference to the books becomes necessary during the examination either to corroborate or contradict a witness, or to make the proof preliminary to the introduction of the books in evidence upon the trial, such proof may be made and the books may be referred to for that purpose. This is not an order for the discovery and inspection of the books, but purely such a one as is authorized by the section of the Code above referred to. ( Horst v. Yuengling Brewing Co., 1 App. Div. 629; Drake v. Weinman Co., 33 N.Y. Supp. 177.)
The order must, therefore, be affirmed, with ten dollars costs and disbursements.
Order affirmed, with ten dollars costs and disbursements.