Jackling v. Edmonds ( 1854 )

By the Court. Daly, J.

I think the judge below did right in denying this application.

The granting of a discovery of this kind rests in the sound discretion of the court. (Bowne v. Cribb, 20 Wend. 682.) And where no particular paper or document is specified, but the application is in effect for liberty to inspect and make copies of all papers relating to transactions between the defendant and a deceased party for the benefit of whose, estate the action is prosecuted, it behooves .the court do'act with great .caution, to be-fully satisfied that the production:.of the papers- or.'documents sought-is essential to enable the defendant to.-make out his defence,, and that his application-is free from all suspicion.

The papers sought according, to the defendant’s showing are numerous,-consisting of-alleged memoranda,-notes, .and checks, statements-in writing- of - money transactions- between him and the deceased,.-memoranda.made of settlement,:memoranda in the defendant’s handwriting; letters-and .-other papers;, and memoranda.left by the deceased, involving..or-relating, to a claim made against him by the administratrix,- of a .considerable amount, upon which he-admits-that'something.is due. No one paper is particularly specified except, a mortgage alleged to have been- assigned, to- the', deceased and .held -by-him for-the defendant’s benefit and subject to his order, the consideration for it having been paid by the-defendant ;■ ¡but no description of it is given, nor does, the petition state, by whom it -was made, nor to what it relates, whether it was a mortgage of real or personal estate, for what amount,- its date, or anything- by which it "could be identified,-nor 'is it included at the close of the petition, among the different kinds of documents of which discovery is sought,- other than under the - general head of ‘other papers,’ while the plaintiff’s attorney swears that a mortgage assigned by the defendant to the deceased was left with him, the' attorney; and. -which' the deceased told him had been, assigned to -him as security for - a note, of-deceased for $1,000 loaned -by him to the defendant, -which nóte ■ the deceased left with his attorney. The petitioner alleges that all the notes in suit were given by him as memorandum notes, in exchange-for-notes of the deceased, which he alleges, he took up and paid when they fell due, and returned to the deceased without receiving- back- the notes in- suit. This'may undoubtedly be -true, hut it -is a statement that must- be -received with-caution,-when-Brown-is no longer alive, and we cannot say what-answer he migbt.be able to make-to it.- His declarations during: life to his attorney-are not consistent with its probability, but on the contrary go to show that it is untrue. .

But the circumstance casting doubt and suspicion as to the bona fi-des of this application is, that after Brown’s death, and after the commencement of a suit by him during Ms life, to recover the amount of these notes; the defendant asked for time to make a statement of the amount of Ms indebtedness, which was granted to him and which he failed to do after a delay'of many months, during which time he did not profess that the examination of any of the papers left by the deceased was essential to the making out of such statement, but on the contrary, declared, when he first asked for time for that purpose, that he could show what the real state of the indebtedness was, nor was any movement made by him for a discovery or examination of any papers left by the deceased, until after the suit was revived in the name of the present plaintiff.

The offer made to him by the plaintiff’s attorney, was a reasonable one, and all that could have been expected under the circumstances; and to suffer him now to rummage over all the papers left by the deceased, relating to their mutual transactions, and make use, upon the trial, of whatever he can find, when Brown is no longer living, and the administratrix is deprived of any explanation or suggestion that might come from him, would, I think, be very improper.

It appears from the admission of the defendant’s attorney that he had nearly completed Ms statement without the aid of any of these papers; that in a statement intended to embrace thirty items, he had completed it as far as the twenty-sixth item. It is to be presumed, therefore, that if there is any paper in the plaintiff’s possession, the production of which is essential to Ms defence, he can describe it with sufficient certainty to enable the court to determine whether its production is material or not. If he does so, even at this late period, he may have whatever relief the purposes of justice require; but a loose, indefinite”, and suspicious application of this kind is not to be encouraged.

The application, moreover, was not made in conformity with the ninth rule of the Supreme Court. The affidavit annexed to the petition does not state that the papers are not in the defendant’s possession or control, and are necessary to enable him to prepare for trial. For this reason alone the application was properly denied, but the most weighty objection is the one above referred to, that it does not specify the particular papers required. It was never allowed to a party to examine his adversary’s books or papers to see if he could find anything to make out a defence. He must describe the paper sought for, show its materiality, and that its contents are not within his reach.

Order denying a discovery affirmed.