Auerbach v. Delaware, Lackawanna & Western Railroad

Adams, P. J.: The plaintiff, who was formerly in the service of the defendant as a locomotive fireman, brings this action to recover for persona] injuries caused by the explosion of a boiler of one of the defendant’s locomotives, the claim being that the defendant negligently permitted the same to become defective, inadequate and unsafe. The allegations of the complaint were put in issue by the defend- . ant’s answer, and thereafter the plaintiff rendered a bill of particulars pursuant to an order of the court in which it was stated that “ the defendant allowed the said locomotive boiler’s crown sheet, side sheets and the stay bolts securing the same ard the flues of said boiler, to become unsafe, defective and dangerous to human life.” After taking this step the plaintiff obtained an order requiring' the defendant to produce such “ crown sheet, side sheets and all and singular the parts now in defendant’s possession of a certain locomotive engine boiler which • exploded on or about the 7th day of December, 1900, injuring the plaintiff herein, and allow plaintiff’s attorneys or their representative, and such other two persons as plaintiff may choose, to make an examination of said parts of said boiler upon the premises of the defendant whereon the said parts, of said boiler are now situate at such times as plaintiff may elect between the hours of 1 o’clock and 6 o’clock in the afternoon of any week day hereafter that plaintiff may choose, upon one day’s notice of such date to defendant.” From this order the present appeal is brought, it being urged that the court had ho jurisdiction to grant the order so appealed from. Save in the exercise of a very limited equitable jurisdiction, the power to compel a party to make discovery of any species of property in his possession, or within his control, has never been regarded as inherent in the court, but rather one which must be expressly conferred by statute. Thus it was held that in the absence of a statute conferring such right the Supreme Court was without power to compel a plaintiff in an action for personal injuries to submit to an examination of his person by surgeons appointed by the court in advance of the trial. (McQuigan, v. D., L. and W. R. R. Co., 129 N. Y. 50.) [203] This particular right.has since been conferred by the Legislature it is true (Code Civ. Proc. § 873), and the general power to compel discovery has in like manner been somewhat enlarged from time to time; but our attention has not been directed to any statutory provision, nor are' we aware of the existence of any, which will authorize the court to permit a party to go upon the premises of his adversary and there inspect and examine any kind of personal property which happens to be owned by or in the possession of such adverse party, and such, we are persuaded, is not the rule. (Cooke v. L. G. Mfg. Co., 29 Hun, 641.) Section 803 of the Code of Civil Procedure, which is the only statutory authority upon the subject, simply confers power upon the court to compel a party “ to produce and discover or to give to the other party an inspection and copy, or permission to take a copy, of a book, document or other paper in his possession or under his control, relating to the merits'of the action,, or of the defense therein.” This language certainly is not sufficiently broad to embrace chattels and personal property of every description; nor do we understand such to be the contention of the learned counsel for the plaintiff. It is insisted, however, that rule 14 of the General Rules of Practice, which evidently is designed to supplement the provisions of the Code relating to proceedings for the discovery and inspection of books, papers and documents, does in express terms authorize a party to an action to compel his adversary to make discovery not only of documents, but of any “ article or property in his possession or under his control,” and it is upon this authority that the order appealed from must stand, if at all. This rule was amended in 1896 so as to include the provision above quoted, and as thus amended it was doubtless intended to conform to the requirements of section 804 of the Code of Civil Procedure, which provides that “ The general rules of practice must prescribe the cases, in which a discovery or inspection may be so compelled, and the proceedings for that purpose, where the same are not prescribed in this act.” We think, however, that in enlarging the scope of this rule so as to include property other than that specifically mentioned in section 803, the Convention of 1895 exceeded its authority. Rules of practice must be consistent with and subordinate to [204] statutory enactments prescribing methods of procedure (Code Civ. Proc. § 17; Rice v. Ehele, 55 N. Y. 518), and giving to rule 14 the construction contended for would, as we think, rend&r it inconsistent with section 803 of the Code, which limits the power of the court to compel discovery to the articles mentioned therein, viz., “ a book, document or other paper.” The language of section 804, which requires that the General Rules of Practice “ must prescribe the cases ” in which' a discovery may be had, does not, in our opinion, mean that the scope of the statute may be so enlarged by the rules as to embrace, any and all property and things owned or possessed by a party; but rather that' the “ cases.” in which a discovery or inspection may be “ so ” compelled are those prescribed and pointed out in section 803. Any other construction would confer upon the judges whose duty it is to formulate the rules, unlimited power to compel the inspection by one party, at the instance of the other, of every species of property in his possession; and this, it is plain to be seen, would inevitably lead to an intolerable condition of affairs. We conclude, therefore, that the order appealed from should be reversed, and that the plaintiff’s motion should be denied. All concurred, except Rumsey, J., not sitting. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.