Gordon v. 580 Equities, Inc. , 159 N.Y.S.2d 865 ( 1957 )

Nathan A. Lashin, J.

This is an application by the defendant for a discovery and inspection of certain items of personal property alleged to have been damaged by water through the negligence of the defendant. The power to compel a discovery is very broad and rests upon the sound discretion of the court “ as justice requires”. (Rules Civ. Prac., rule 141.) The subject matter may include any article or property relating to the merits of the action, or of the defense therein. (Civ. Prac. Act, § 324.) Prior to the enactment of section 324 of the Civil Practice Act, discovery was limited to books, documents and other papers. (See Code Civ. Pro., § 803.) The contention of the plaintiff that the amount of damages has no relation to the merits of the defense is untenable. It is part of the defendant’s defense to refute the damages claimed by the plaintiff. Such defense need not necessarily be an affirmative one. (See Iroquois Hotel & Apt. Co. v. Iroquois Realty Co., 126 App. Div. 814; Miller v. New England Mut. Life Ins. Co., 14 N. Y. S.’ 2d, 129.) Certainly if a party is required to submit his person for physical examination pursuant to section 306 of the Civil Practice Act, then what sanctity does an inanimate object possess so as to preclude an inspection. The modern trend is to encourage inspections and to afford the statutes a liberal construction. In this manner the trial of actions may be expedited and justice more speedily administered. The court is concerned only with ascertaining the truth of the claim alleged by the plaintiff and to this end the source of the truth should be made available to the defendant as well as the court. Accordingly this motion is granted. The plaintiff is directed to permit the defendant to discover, inspect and take photographs of the items of personal property which form the subject matter of this action. I see no necessity for the appointment of a referee. The inspection shall proceed at a date convenient to both parties within 20 days after service of a copy of this order upon the attorney for the plaintiff.