Citation Numbers: 14 Daly 288, 12 N.Y. St. Rep. 677
Judges: Hoesen
Filed Date: 12/5/1887
Status: Precedential
Modified Date: 1/12/2023
The plaintiff, whilst visiting a show called Nevada Ned’s Indian Village, at which some Indians performed, and certain nostrums were sold, was injured through the negligence of those who had charge of the tent. She believed that Healy and Bigelow were the actual proprietors of the show, and she brought this action against them, to recover damages for her injuries. An order was made for the examination of the defendant Healy before trial, the expectation of the plaintiff being that Healy would admit that he and his partner were the owners of the show. Healy did not make that admission, but swore that, though Healy and Bigelow owned what is called on the frontier, “the entire outfit,” yet that “Nevada Ned” was the proprietor, having leased from them property used in the show, and undertaken to conduct a sort of circus business on his own account. In the course of his examination, Healy made a number of references to the books of Healy and Bigelow, and said that if he had those books in court he would be able to answer several questions which, without the bopks, he could not answer. It would have been proper, when that fact appeared, to apply to the court for an order that the books be produced (Morrison v. McDonald, 9 Abb. N. Cas. 57; Parsons v. Belden, Id. 55, 57).
A witness may be compelled to refer to a memorandum in court, if it be needed to refresh his memory (Greenleaf § 436), and, under sections 853 and 874 of the Code, a party upon an examination before trial may be compelled to produce a paper under his control when he swears that
But if Healy had been compelled to produce his books in order that he might complete his answers, the end of the plaintiff might not have been attained. An examination of the books whilst the witness was giving his testimony could hardly have been satisfactory. It is almost always the case that a party can be compelled by subpoena duces tecum to produce his books at the trial, but yet it is in the discretion of the court to determine whether a discovery in advance of the trial should not be had (Stilwell v. Priest, 85 N. Y. 649). A discovery is proper when facts and circumstances are shown that warrant a presumption that a book or a document contains evidence that will prove, or tend to prove, some fact that the party applying is bound to establish. Absolute proof that the documentary proof exists is not required (Lefferts v. Brampton, 24 How. Pr. 257; Union Paper Collar Co. v. Metropolitan Co., 3 Daly 171).
The sole inquiry here is, Do the papers warrant the belief that the books of Healy and Bigelow will show that that firm were solely, or in connection with “ Nevada Ned,” the proprietors of the show at which the plaintiff received her injuries ?
We concur in the correctness of the rule that a discovery is not proper where the object of the applicant is not so much the obtaining of evidence that he knows or has good reason to believe to be in existence, as to obtain an opportunity of examining his adversary’s books, with the hope of discovering something in them that may prove advantageous to him (Davis v. Dunham, 13 How. Pr. 425).
If the connection of Healy and Bigelow with the show were not clearly proved, we should unhesitatingly deny this application. It would be most oppressive to permit a
. The facts that I have stated seem to me fairly to warrant the presumption that the books of Healy and Bigelow will show that the firm was the real proprietor of the show. I am of opinion, therefore, that the order appealed from was properly granted, and that it ought to be affirmed, with costs and disbursements. The case bears some resemblance to that of Stilwell v. Priest (85 N. Y. 649), which I have
L arremore, Ch. J., and J. F. Daly, J., concurred.
Order affirmed, with costs.