Phillips v. Mills , 20 Abb. N. Cas. 381 ( 1887 )

Van Brunt, P. J.

The vacation of the previous order for the examination of Mi1. Stursberg and for the production of the defendant’s books was expressly affirmed upon the ground that it would have been a doubtful exercise of power upon the part of the court to make an order requiring a foreign corporation to bring its books from its principal office in a sister State to the State of Hew York for the inspection asked for in this case, especially, after it had offered to allow the inspection of its books in the foreign 1 State, if the plaintiff desired to make such inspection.

Immediately after that decision the plaintiff asked leave to make the inspection which had been offered, and which offer had been the ground upon which ' the previous decision of the general term proceeded, which leave was refused. He was then compelled to apply for the examination of one of the officers of the defendant, in order that he might learn facts about the profits upon which his compensation depended of which he was ignorant, and knowledge of which rested with the officers of the defendant; and after this order for examination was granted, in view of the previous history of the case, it was too late to renew the offer to examine the books.

By a refusal, unjustified under the circumstances of this case, the plaintiff was put to the trouble of Ms motion, and the defendant should not then be allowed to escape from such examination by agreeing to do that which it never should have refused.

The objection that Mr. Stursberg is not directed to be examined as an officer of the defendant is not well taken. The affidavits show that his examination is sought as an officer'of the defendant, and the section of the Code simply requires the order to state the name of the officer whose examination is desired.

The order appealed from should be reversed, with §10 costs and disbursements.