Beckwith, C. J. This is a motion for the reargument of an appeal from an order made at special term “for an examination of the plaintiff as to the source and character of the title to lands mentioned in the complaint.” This action is ejectment. The court at special term decided that an examination of tlie plaintiff as to the nature and source of his alleged title was material and necessary to enable tlie defendants to prepare their answer.
Tlie facts and circumstances stated in the defendants’ affidavits, upon which they rely to show that ihe examination of tlie plaintiff is material and necessary, are very much the same facts and circumstances that would be put forth by the possessor of land against a stranger who should come along and claim to own his land.
The delendants say, in effect, that they cannot form any idea Oi 665 the theory, pretense, or claim upon, which the plaintiff sets up a right to the land; that they have searched the records and made inquiries, and cannot get any hint or notion of the ground upon which the plaintiff claims to be the owner of the parcel of land in question; that the plaintiff dues not disclose how he became the owner, whether by deed, devise, or otherwise; and they affirm that the nature of their defense is that the plaintiff has “no right, title, or interest in or to said premises, and no present right to the possession thereof, as against the defendants.” They ask theplaintiff todisclose his title, the nature of it, by showing the source of it, so far as to enable them to answer intelligently.
The defense will consist, not only in establishing the validity of the title claimed to belong to the defendants, but also in showing the invalidity of the plaintiff’s title. To overthrow the plaintiff’s title is obviously one defense which the defendants would have a right to attempt to accomplish, and the quality and character of that title is matter as material and necessary for the establishment of the defendants’ answer as the plaintiff’s complaint.
And it was in this view that, when the defense consists in destroying the plaintiff’s case.it was held, under the chancery jurisdiction, that a defendant could sometimes enforce discovery from a plaintiff, when, under like circumstances, a plaintiff could not examine into a defendant’s proof or grounds of defense. Hoffmann v. Pos till, L. R. 4 Ch. App. 678.
It is true that the defendants could answer by a general denial, but they would be in the dark, and the object of an examination of the plaintiff would be to enable them to answer intelligently; to enable them to know something about what they are setting up an answer against; what the title'-'claimed by the plaintiff is; what source it comes from.
I think the plaintiff is bound to answer questions that will exhibit his title, for such disclosure could enable the defendants to answer, although plaintiff could not be compelled to discover the instruments of proof by which he intends to support his claim any further than necessary to show the source of title. The judge who made the order appealed from says in his opinion: “The defendants must necessarily attack the plaintiff's title or show a better one in themselves.
It appears that the defendants have failed, after search and inquiry, to ascertain what the source of plaintiff’s title is, and I can see how such information may be necessary to the defendants in framing their answer to meet the facts.
I think, however, that the examination should be limited to the sole question of the source and character of plaintiff’s title.” It thus appears that Judge Titus took notice of precise facts and circumstances which he thought justified the exercise of the discretionary power given by the statute to grant the order. We are unable to say that that power was improperly exercised in this case.
The examination is ordered to be confined to the character and source of the plaintiff’s title, and is not to be extended to collateral matters, such as surveys, boundaries, practical location, nor to the plaintiff’s means of proof, further than necessary to disclose the source of the alleged title. The defendants would seem to be entitled to so much light as that. Adams, Eq. p. 9. In Powers v. Elmendorf, 4 How. Pr. 59, Justice Harris held that defendants should be compelled to disclose title-deeds.
But this proceeding is governed by the statute and the rules of court. The defendants’ papers conform technically to the requirements of the Code. Rule 88 requires the defendants to state the facts and circumstances which show that the examination of the party is material and necessary. Here the defendants have stated the facts and circumstances which they thought showed the necessity of the examination.
Among other things, they show that they cannot get any clue as to the claim of title, pretense or color of title, under which the plaintiff alleges a right to recover the premises.
The case as made upon the papers is like that of a citizen who, while occupying his property under an undoubted ownership, is sued by a stranger, who alleges ownership in himself, but upon what title or claim the defendant is unable, after search and inquiry, to get any light, 666 The judge who granted the- order deemed the facts sufficient, and we cannot say that there was an abuse of his discretionary power. Glenney v. Stedwell, 64 N. Y. 120; Herbage v. City of Utica, 109 N. Y. 81, 16 N. E. Rep. 62.
We understand that ordinarily a defendant cannot compel a plaintiff to produce for examination the evidence, documentary or other kinds, upon which' he relies to establish his case, unless there is some fact in connection therewith which the defendant relies upon to establish his defense, when he may have discovery, as was done in Jackson v. Jones, 3 Cow. 17, and in Kearny v. Jeffries, 48 Miss. 343.
In ejectment, the defense may depend upon the ability of the defendant to attack and expose invalidity in the plaintiff’s alleged title, and, in order to plead and to prepare himself for such a mode of defense, he would find it material to have some knowledge of the source of the-plaintiff’s alleged title, whether founded upon deeds, inheritance, will, fraud, estoppel, or other claim.
Of course, the plaintiff, in order to recover, must establish his title; but that does not alter the position of the defendants, who, before they can intelligently plead, must have some information as to the source of that title which the plaintiff alleges he has, and in respect to which the defendants, after effort to find out its character, remain in the dark. We think the order of this court affirming the order of the special term should not be disturbed, and therefore the motion for a reargument is denied.
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