Broadway Apartment Realty Co. v. Rickert Finlay Realty Co.

Gtegerich,. J. An insuperable objection to the granting of this application for a discovery and inspection of the plaintiff’s minute book or books, and one that cannot be remedied by an amended petition or additional affidavits, is the inexcusable laches of the defendant in making the application. The defendant did not take any steps to secure an inspection of the books until after the case had been set down for trial, and then only through the medium of the examination of the plaintiff through its president and secretary before trial, which was held to be an improper method because the necessity for the production of the books was not shown. Wood v. Mott Iron Works, 114 App. Div. 108. The case has been on the day calendar of Special Term, Part III, since October 22,1915, and the plaintiff has all along been ready and still is ready to try the case. The defendant did not apply for a discovery or inspection of books until November first, when an order to show cause, returnable on November fourth, was granted. If not already reached for trial the case soon will be, and if permitted an inspection would result in a delay of the trial, which, it is claimed by [295] plaintiff’s counsel, will greatly inconvenience the plaintiff and be a hardship to it. In Moran v. Vreeland, 29 App. Div. 243, the court said: “A party who desires the inspection of an instrument for the purpose of preparing for trial, cannot ordinarily wait until after the cause has been set down for trial and has actually appeared upon the day calendar before making his application. If he does his application •should be-denied upon the ground of his own laches.” See, also, to the same effect, Mutual Reserve Fund Assn. v. Patterson, 33 Misc. 572, 575; affd., 58 App. Div. 625. Applying the rule so laid down in these cases to the present case, the motion should also be denied for laches. Apart from all this it is stated in the opposing affidavit, without contradiction by the defendant, that the plaintiff is willing to give to the defendant a list of its officers and directors and a list of the directors who attended any particular meeting which the defendant may specify, so far as the same appears on the minutes of the plaintiff corporation in connection with said meeting, and that the plaintiff and the defendant have already entered into an agreement in connection with the trial of this action whereby the plaintiff has agreed to produce on the trial the minute book and all other books of the plaintiff corporation that the defendant corporation may call for. In view of this T fail to see the necessity of ordering a discovery of the plaintiff’s books even had the defendant otherwise shown itself to be entitled thereto. Motion denied, with ten dollars costs.