Martin v. Spofford

Lawrence, J. I cannot but regard this as an application to compel a party to the action to produce his books and papers while under examination as a witness before trial. The weight of authority is against such an application (Havemeyer v. Ingersoll, 12 Abb. Pr. N. S. 301; Hausman v. Sterling, 61 Barb. 347). “ The statute has pointed out the only mode by which a discovery of books and papers can be obtained before trial” (per Ingraham, P. J., in Hausman v. Sterling, supra).* The plaintiff’s course would seem to be to move for a discovery and inspection under [127] sections 803, 804, and 805, et seq., of the Code of Civil Procedure. Application is denied. Footnotes [*] The common pleas followed the same rule under the former Code. De Bary v. Stanley, 5 Daly, 412. The N. y. superior court allow the supoena. Smith v. MacDonald, 1 Abb. New Cas. 350, and cases cited. The court have power in their discretion to allow it. Code of Civ Pro. section 7, subd. 1, section 852.