Palen v. Johnson , 18 Abb. Pr. 304 ( 1864 )

Mason, J.

This is a motion for discovery of books and papers. The defendants interposed a demurrer to the whole complaint, which was overruled in special term, and defendants have appealed to the general term from the order overruling the demurrer; arid the case now stands on appeal, when the plaintiff makes this motion for a discovery. The only ground upon which the discovery is claimed in the plaintiff’s petition is, that it is necessary to enable the plaintiff to prepare for the trial.

The motion must be denied, for the reason that it is prematurely made, there being no issue of fact joined to be tried. The plaintiff does not show any, and cannot show that this discovery will ever be necessary. If the demurrer is held bad by the general term, and the order of the special term affirmed, the defendant may never answer the complaint, or he may put in an answer confessing every material allegation in the complaint.

It is impossible, now, for the court to determine that this discovery is necessary, or ever will be, to enable the plaintiff to prove his case, and this motion is denied without passing upon the merits, upon the sole ground that the application is premature.

Motion denied, with $10 costs.