Haffenberg v. Weedling

Order modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to either party. Memorandum: Defendant’s affidavit shows that his business is highly competitive and that disclosure of the names and addresses of his customers would result in serious damage. Plaintiff should be allowed to examine as to the total volume of sales but the names and addresses of customers not procured by plaintiff do not appear to be necessary or material to establish his cause of action. The examination should not include names and addresses of defendant’s customers who were not procured by plaintiff. The order for examination before trial should be so modified. A discovery and inspection may be had of books and papers “ relating to the merits of the action ” (Civ. Prac. Act, § 324). “Documents are not subject to inspection for the mere reason that they will be useful in supplying a clue whereby evidence can be gathered. Documents to be subject to inspection must be evidence themselves * * (People ex rel. Lemon v. Supreme Court, 245 N. Y. 24, 29.) A roving commission to inspect all of defendant’s books and records including those which do not relate to the merits of the action is not authorized. A limited inspection pursuant to section 296 of the Civil Practice Act under the supervision of the official referee upon the examination before trial should be sufficient. (See Zeltner v. Fidelity & Deposit Co. of Maryland,, 220 App. Div. 21; DeVan v. Tobacco Products Corp. of Delaware, 256 App. Div. 343, 344; Beeber v. Empire Power Corp., 260 App. Div. 68; Meisel v. Spielman Motor Sales Co., 260 App. Div. 880, decision amended 939.) That part of the order providing for discovery and inspection should be stricken out, and a 1058 limited inspection of the books and records or portions of the same relevant to the issues upon which the examination is to be had should be permitted under the supervision of the official referee. All concur. (The order grants plaintiff’s motion for an examination of defendant before trial, and an examination and inspection of certain of defendant’s books and records.) Present — Taylor, P. J., Harris, McCurn, Larkin and Love, JJ.