Schlesinger v. Ellinger

Maeshall, J. It is conceded, as it must be, tbat the lower court was not warranted in refusing to vacate the order requiring production of books and papers, if the 'prima facie showing made in the moving papers for such order, tbat such books and papers were in the possession or under the control of plaintiff, was fully rebutted. The proceedings were governed by sec. 4183, Stats. (1898). Tbat only authorizes compulsqry permission of one party to an action to inspect and take copies of “books, papers and documents in” the “possession or under” the “control” of the adverse party “relating to the merits of the action or of the defense therein.” So an unqualified credible denial by appellant of the allegations of respondent’s petition as to such possession and control necessarily constituted a full answer thereto', and called for a vacation of the order as requested. The practice under the statute is well and firmly settled as indicated. Woods v. De Figaniere, 25 How. Pr. 522; Hoyt v. Am. Fxch. Bank, 1 Duer, 652; Ahoyke v. Wolcott, 4 Abb. [401] Pr. 41; Bradstreet v. Bailey, id. 233. Indeed, no authority would seem to be needed on the question. The statute is plain. The court can go to the extent thereof and no further. The rule is thus laid down in standard works on practice, referring to statutes in most of the states the same or similar to ours, with numerous supporting authorities. 6 Ency. Pl. & Pr. 794-802, and notes. In Hoyt v. Am. Exch. Bank, supra, the court remarked that “If in answer to the order the opposite party denies fully and explicitly that there are any such entries, books, or papers under his control, that is an end of the application.” Such is the effect of all the authorities referred to. True, it has been held that where it appears that the books and papers, inspection of which is sought, have been in the possession of the adverse party, the proof that they are so no longer, especially in a case where such party is unquestionably the proper custodian thereof, must be very clear to require an order for the production thereof to be vacated. Holly Mfg. Co. v. Venner, 86 Hun, 42, 33 N. Y. Supp. 287. That is upon the theory that the court which dealt with the matter originally must be regarded as having had reasonable ground to believe from the evidence that the adverse party in fact had control of the papers notwithstanding his denial, not upon the ground that possibly, or probably, he knows of their whereabouts and though held in hostility to him he can gain control thereof for the use of such party. The burden of proof in such a case is rightly said to be on the party seeking to have his adversary coerced, though his affidavit that such adversary has control of the papers, which he may properly make without personal knowledge because of the presumption arising from the fact that rightly they should be in such control, makes a prima facie case. But when such presumption is rebutted by the positive denial by such adversary, who must in the nature of things be re [402] garded as having personal knowledge whereof be speaks, an order nevertheless requiring him to produce the papers, based on mere suspicion that his denial is false, or that the papers are where he might gain control of them, is improper. Bradstreet v. Bailey, supra. It is difficult to see how appellant’s denial of possession or control of the papers and the abundance of proof supporting such denial could have been more specific. He not only denied the allegations of the petition but showed by his own and other affidavits, most positively, that the papers had never been in his possession and that though he had made diligent effort to discover their whereabouts such efforts had not been successful. The case in appellant’s favor seems to have been made about as strong as affidavits could have made it. There is no way of escaping the conclusion that he either stated the truth or that he and each of several other persons made, wilfully, a false affidavit. We must conclude that the order complained of was made under a misconception of the facts disclosed by the proofs. The opinion of the learned trial judge bears unmistakable indications in support thereof. His langnage to the effect that the papers having been shown to have come to appellant’s possession he should produce them or show what had become of them, in connection with the authorities cited in such opinion in support of the proposition (Perrow v. Lindsay, 52 Hun, 115, 4 N. Y. Supp. 795; Union T. Co. v. Driggs, 49 App. Div. 406, 63 N. Y. Supp. 381; Fidelity & C. co. u. Seagrist, Jr., Co. 79 App. Div. 614, 80 N. Y. Supp. 277), shows that the judicial mind acted upon the theory that the papers and records had been traced into appellant’s possession and were last seen there. If the court were right in that, the order complained of would have some basis to rest upon. There is, however, absolutely nothing in the evidence to support that view so far as we can discover. The judge’s opinion follows very closely this language of [403] tbe syllabus in Perrow v. Lindsay, supra, indicating that he supposed the rule there stated governed the case: “Where a paper is shown to have been, when last seen, in the possession of the defendant, it devolves upon him to show what he did with it, what has become of it, or how it got out of his possession, and that it is no longer under his control.” As the premise suggested does not exist in this case the rule, obviously, was improperly applied. The court below not only misconceived the facts but as it seems misconceived the law, in that the decision was based on the theory that it was the duty of appellant, if he did not have control of the papers and records, to gain such control, since he was the rightful custodian, for the purpose of complying with the order. Nothing of that sort is suggested in the statute. The idea was early repudiated in New York in Bradstreet v. Bailey, 4 Abb. Pr. 233, where it was held that the statute must be restricted to what it says; that it cannot be extended so as to compel a party to assert his right to possession of papers and obtain them, of one who would resist h'is efforts in that regard, for the purpose of producing them for inspection by the adverse party. The foregoing renders it unnecessary to discuss any other proposition presented in the briefs of counsel than the one we have treated. By the Court. — The order appealed from is reversed, and the cause remanded with directions to grant the motion to vacate the order of July 24, 1906.