Bloodgood v. Slayback 71 N.Y.S. 809, 62 App. Div. 315

(62 App. Div. 315.)

BLOODGOOD v. SLAYBACK.

(Supreme Court, Appellate Division, First Department.

June 21, 1901.)

1. Examination before Trial—Books and Papers.

An order for the examination' of defendant, under Code Civ. Proc. § 873, before trial, and an order for the examination and inspection of books, are distinct proceedings, and cannot be united in one order.

3. Same.

A proceeding for the inspection of books must be commenced by petition, under Code Civ. Proc. § 805.

Appeal from special term, ¡New York county.

Action by Harry L. Bloodgood against John D. Slayback. From an order vacating an order for the examination of defendant before trial and an inspection of certain books and papers, plaintiff appeals. Affirmed.

*810The following is the opinion of FREEDMAN, J., delivered at special term:

This motion is made to vacate an order obtained ex parte, appointing a referee herein, and ordering that the defendant he examined as an adverse party, and his deposition taken, pursuant to section 873 of the Code of Civil Procedure, and also that the defendant produce for inspection the articles of co-partnership and ail the boobs of the firm of John Bioodgood & Co., formerly composed of John Bioodgood and defendant. Upon the hearing of the motion the defendant interposed the preliminary objection that an order for the examination of the defendant under section 873 of the Code of Civil Procedure and an order for the examination and inspection of books are distinct and independent proceedings, and cannot be united under one order. This objection seems to be well taken. Lefferts v. Brampton, 24 How. Prac. 257; Havemeyer v. Ingersoll, 12 Abb. Prac. (N. S.) 301. An absolute order for an inspection of books is improper. Dick v. Phillips, 41 Hun, 603; Francis v. Porter, 88 Hun, 325, 34 N. Y. Supp. 752. In a proper case, under sections 872 and 873 of the Code of Civil Procedure, a witness may be required to produce books and papers as an adjunct to his oral examination, and to refer to them for the purpose of making his examination effective. Drake v. Weinman & Co., 12 Misc. Rep. 65, 33 N. Y. Supp. 177; Fenton v. Dempsey, 10 N. Y. St. Rep. 733. But a proceeding for the inspection of books must be commenced by petition. Code Civ. Proc. § 805; Dick v. Phillips, supra; Francis v. Porter, supra. The motion is granted, with costs.

. Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLlN, PATTERSON, and LAUGHLIN, JJ.

Grosvenor Nichols, for appellant.

D. McCurdy, for respondent.