Opinion
March 23, 1923.
Louis Maxwell Cohen [ M. Montefiore Henschel of counsel], for the appellant.
Rockwood Lark [ Charles A. Winter of counsel; A. Boskowitz with him on the brief], for the respondent.
The notice is a notice for the examination of Jerome N. Lurie upon certain issues, and in the 4th subdivision thereof the notice reads: "As to the contents of the following books of said corporation in the custody of the defendant, formerly in the custody of the defendant's testator: The minute book from November 15, 1915, to November 1, 1916; the ledger, day book, cash book for March, April and May, 1916; the check book of the Importers Traders National Bank of New York, with the stubs therein, for March, April and May, 1916; the cancelled checks paid by said bank during March, April and May, 1916." The books, themselves, are the best evidence, and the only reason for the inclusion of subdivision 4 is that the party may be required to produce these books for inspection.
Section 296 of the Civil Practice Act provides that where an order for an examination is made, the order may direct the production of books and papers in the custody of the party, which may be received in evidence. There is no provision, however, for the production of books and papers upon a mere notice, given under section 290, of the taking of testimony by deposition. A party can only be required to produce books upon such examination, under an order of the court.
The order denying the motion to set aside the notice should, therefore, be modified by providing that subdivision 4 of said notice be stricken out, and as modified affirmed, without costs.
CLARKE, P.J., DOWLING, FINCH and McAVOY, JJ., concur.
Order modified by providing that subdivision 4 of the notice of examination be stricken out, and as so modified affirmed, without costs. Order fixing date for examination to proceed to be settled on notice.