Merguelle v. Continental Bank Note Co. , 7 Rob. 77 ( 1868 )

Robertson, Ch. J.

This is an application by the plaintiff for a discovery of books and papers in the custody of the defendants. The action is for the services of a deceased intestate (James Merguelle) of whose estate the plaintiff is administrator, as agent in procuring orders for work by the defendants. -A bill of particulars has been demanded of the plaintiff and she desires to'amend her complaint. The books and papers applied for are, copies of letters to the deceased from the defendants, a record kept by them of his'expenses, his drafts, orders, receipts and letters,' and the accounts with him kept by the defendants. The affidavit on which the motion is made, states only that there are in the possession of the defendants various letters, receipts and accounts in the handw’riting of the deceased, “ containing evidence in relation to the subject of the action” and “to the merits of the action.” This allegation is not enough to enable the court to determine that the contents of such books and docúments are at all material as evidence in regard to any thing in issue in the action. And the plaintiff is not entitled to the inspection of all of them to obtain mere information how, of in reference to what, to get evidence, (Woods v. DeFiganiere, 1 Rob. 681. Morrison v. Sturges, 26 How. 177.) Nor is it sufficient that such books may possibly furnish such evidence. The documents are not set forth "with any precision to enable the court to order them to be produced. (Jackling v. Edmonds, 3 E. D. Smith, 539. Low v. Graydon, 14 Abb. 443. Mora v. McCredy, 2 Bosw. 669.) The death of the intestate cannot give his representative superior rights to what he would have had if living. The plaintiff is, however, probably entitled to copies of any accounts rendered by her intestate as agent. (Smith v. Winter, 3 M. & W. 309. Pritchett v. Smart, 7 C. B. 625,) and to copies of any entries made by the defendants in their books to his credit. (Brevoort v. Warner, 8 How. Pr. 321.) Any other papers must be obtained by a subpoena duces tecum. (Id.) I cannot see how a knowledge of what the defendants have paid upon orders or for the expenses of the intestate can aid the plaintiff in making out his charges against them. The order must be confined to sworn copies of the accounts and entries before mentioned, to be given as the expense of the plaintiff.