June 19, 1908.
Roger S. Baldwin, for the appellant.
John J. Cunneen, for the respondent.
Present — INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON and SCOTT, JJ.
The action is for damages for an alleged wrongful eviction of the plaintiff from premises used as a hotel.
In conducting its business the plaintiff kept books showing resulting profit or loss and these books defendant asked to be permitted to inspect. The defendant denies the wrongful eviction or that any damage resulted. The books of the plaintiff will show whether the hotel business was profitable or not, and if profitable to what extent plaintiff suffered damage from its eviction. Damages being claimed and denied their amount is a material issue in the case. Section 803 of the Code of Civil Procedure permits an inspection of the books or papers of an adverse party "relating to the merits of the action or of the defence therein." A right of inspection of books and papers is thus expressly given by the Code to a defendant where they affect the merits of the defense, and this defense need not necessarily be an affirmative one. Such inspection may greatly facilitate the trial and relieve the court from much detail as well as apprise the parties so they may meet the particular dispute involved and should be granted where a proper case is disclosed. ( Hart v. Ogdensburg L.C.R.R. Co., 69 Hun, 497; Powers v. Elmendorf, 4 How. Pr. 60; Rhoades v. Schwartz, 52 App. Div. 379; Edmonds v. Attucks Music Publishing Co., 117 id. 486.)
We think the defendant showed facts entitling it to the inspection asked for. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.