Ahoyke v. Wolcott , 4 Abb. Pr. 41 ( 1856 )

Davies, J.

—Section 33 of the Revised Statutes referred to (2 Dev. Stats., 3 ed. 262, § 33), directs that any order for discovery granted in pursuance of the provisions of the statute may be vacated on the following grounds:

1. On satisfactory evidence that it ought not to have been granted.

2. On the discovery sought being made.

3. When the party who is called on to make the discovery denies, under oath, the possession or control of the books, papers, &c., ordered to be produced.

Such oath has been made in this case by the parties called on to make the discovery, and as it is made in conformity with the provisions of the statute, I do not feel that I have any power to look behind that denial. I might speculate on the subject, and say that it is natural the defendants should have in their possession or under their control these letters, and, therefore, it operates hardly on the plaintiff that he cannot ascertain them whereabouts, and thus compel their production. . It seems to me that the statute intended to leave with the defendants the responsibility of denying under oath the possession or control of the papers; and if they made such denial, the power of the court was exhausted.

This is certainly the view taken by the Superior Court in the case of Hoyt v. The American Exchange Bank (1 Duer, 652), and that case was very carefully considered. Judge Bosworth says, in delivering the opinion of the court, that “ if in answer to the order, the opposite party denies fully and explicitly that there are any such entries, books, or papers, under his control, that is an end of the application. He cannot be subjected to a fishing examination or investigation with a view to ascertain the fact, whether he has or has not books, papers, &c., which may contain evidence relating to the merits of the action or of the defence, unless he is examined as a witness, so that his deposition may be made evidence as well for as against him.”

“ If the party answer distinctly and unevasively, as to the papers of which a discovery is sought, that there are no such papers or documents in his possession or under his control, the applicant must abide by the answer, so far as the proceedings for a discovery are concerned. If dissatisfied with the result of the proceedings, he must examine him as a witness, or rely on such other evidence as he may be able to command. He has no right to have a general, inquisitorial examination of all the books, papers, and documents of his adversary, with a view to ascertain, if, perchance, something cannot be found which will possibly aid him.”

In these views, which appear to me eminently sound, I concur, and they are controlling in the present motion.

The counsel for the plaintiff referred to the case of Southwel v. Dwight (2 Sandf. S. C. R., 672), as establishing a different rule. I think a careful examination yet will show, that it is in harmony with the case first cited. It was apparent there that the party against whom the discovery was sought had made but slight examination to ascertain whether the paper to he discovered was in his possession or under his control; and he stated that, to the best of his knowledge and belief, it was not in his possession or under his control.

The court held this answer as insufficient, and upon it refused to vacate the order requiring the discovery. Sandford, J., says: “ He must make such an examination to enable him to swear positively that the papers are not in his possession, or under his control, or state facts with his denial, when expressed as it is here, which will show that such denial is equivalent to the positive oath required by the statute.”

In this case the parties have sworn positively that the papers of which discovery is sought are not in their possession, or under their control, and in compliance with the mandate of the statute, the order for the discovery must be vacated; but without costs to either party.