Mott v. Consumers' Ice Co.

J. F. Daly, J. — Plaintiff sues for damages for injuries sustained by reason of a collision between the carriage in which he was sitting, in Fourth avenue, near Eighteenth street, in the city of New York, and an ice wagon driven by a servant of defendant, caused, as the complaint avers, by the negligence of the latter. Plaintiff was thrown out and sustained injuries which he alleges prevented his attending to his profession and business as a practicing physician to his loss in the sum of $100 a day (that being the value of his [150] practice at that time) for ten weeks, and in the sum of $200 a week thereafter. Defendants deny all of the allegations in the complaint except their incorporation and that plaintiff was and is a practicing physician and surgeon. Application is now made by defendants for a discovery and inspection of all books kept by plaintiff as such physician and surgeon from the time of the accident down to this time, and for two years prior to the accident, in order to ascertain what the value of and receipt from plaintiff’s practice were and are, so that they may be prepared on the trial of that issue. The application is made upon affidavit of defendant’s belief that plaintiff has kept and still keeps books in which are entries tending to show the amount of his receipts and charges, but cannot, of course, describe or indicate any particular book or books of which discovery should be had. It is, in fact, an inquisitorial examination of all the books, papers and documents that he seeks in the hope that they contain evidence of the falsity of plaintiff’s averment in his complaint as to the extent and emoluments of his practice, and as such falls,I think, within the rules laid down to prevent a mere fishing examination (Brevoort agt. Warner, 8 How., 321; Hoyt agt. Am. Ex. Bk., 1 Duer, 652; Com. Bk. agt. Durham, 13 How., 541; Davis agt. Dunham, id., 425). The case before me differs from that in which the defendant is allowed to inspect the sales books of the plaintiff to establish in an action for infringement of trade-mark that no bona fide sales have been made by plaintiff (Union Paper Collar Co. agt. Met. Collar Co., 3 Daly, 171), such fact being necessary to establish defendant’s case. It is said that the right of a defendant to a discovery is limited to documents which form a part of his case (Wright agt. Morry, 11 Exch., 209). So the plaintiff is said to have a discovery as to the manner in which defendant’s case is to be established (Hunt agt. Hewitt, 7 Exch., 236), and the rule is equally fair as to both [151] parties; in fact, it has been held that neither party is allowed a discovery to enable him to rebut an anticipated case of the other (2 Wait's Practice, 531 d, and cases cited). ' The discovery here sought is unquestionably with a view to rebut the plaintiff’s anticipated case, and to oppose his books to what is expected to be his oral testimony. But such a claim of right to discovery and inspection, if allowed, would extend this particular remedy to almost every case, and subject all parties seeking redress for injuries to the person to the same sort of visitation and inquisition they would be compelled to undergo if charged with defrauding the revenue. The plaintiff, if he keeps books showing his gains and receipts from his practice, and refuses to produce them to support his own testimony on that point, subjects himself to certain presumptions against his claim which a jury would not be slow to apply, and in this respect the books of plaintiff are better witnesses for defendants out of court than in it. But plaintiff resists an inspection of his boobs upon a ground that I deem fatal to the application, if no other considerations were presented, viz., that they contain as part of his records information derived from his patients, which is of a privileged character (3 R. S., 611 [6th ed], sec. 119). Application denied, with ten dollars cost.