Jackson v. Ives

By the Court, Bronson, J. The first adjournment beyond the then next term of this court, exceeded the power expressly conferred on the referees. 2 R. S. 384, § 43; and the two last adjournments, which were ordered when only two of the referees were present,, seem to have been unauthorized. Ibid. § 46, and Harris v. Norton, 7 Wend. 534. But without enquiring into the effect of these irregularities, if they must be deemed such, I think the plaintiff, now comes too late for a discovery. He not only had notice, but a bill of the particulars of the defendant's set off, and without then asking a discovery to enable him to prepare for trial, rule 28, 29, he proceeded to a hearing; and now, after both parties have given their evidence, he seeks an inspection of the defendant’s books of account. Such a course may open the whole controversy, and can hardly fail to prove unreasonably burdensome to the defendant. I do not say that a discovery can never be had at this stage of the cause ; but it should only be granted, if at all, under very special circumstances. The delay in asking for it should be fully explained, and it should plainly appear that the ends of justice make a discovery indispensable. Nothing short of this will justify a departure from the general rule of refusing a discovery when it is not asked for at the proper time. In this case no reason is assigned why the plaintiff did not ask an inspection of the books before proceeding to the hearing, nor is it shown that the ends of jus [639] tice will be promoted by granting the motion. It looks very much as though the plaintiff was fishing for evidence, and attempting indirectly to obtain a re-hearing of the cause. Motion denied.