Emanuel v. La Compagnie 5 N.Y.S. 797

Emanuel v. La Compagnie, Etc., de Vischy.

(Supreme Court, Special Term, New York County.

October 30, 1888.)

Practice in Civil Cases—Production of Papers.

R. entered into a contract for the purchase of certain goods from, defendant, and afterwards made a contract with another for the purchase of similar goods, alleging that defendant had failed to fulfill his agreement. Held, in an action to re*798cover commissions from the defendant for the negotiation by plaintiff of the first contract, that the production of the second contract could not he compelled, where it was objected that it was only material as affording a basis on which to compute the plaintiff’s commissions, and that its production would disclose facts material to an action for the alleged breach of contract by the defendant.

Action by one Emanuel, brought in England against the La Compagine, etc., de Vischy, to recover upon contract commissions alleged to be due plaintiff for having placed or negotiated a contract by which defendant was to supply the Rubinat Company of Hew York with the waters of certain mineral springs situate in Spain. A commission was issued out of the high court of justice in England to this city to examine witnesses and take testimony for use in that action, and, a subpoena having been issued in aid of the commission requiring one Tappin to appear and submit to an examination as a witness, and to produce a certain contract in his possession, Tappin objected to the production of such papers, and moved that the subpoena be vacated, on the grounds—-First, that it was immaterial to the issues in said action; and, second, that he should not be required to disclose his private papers and private business. The contract was one by'which one De Bofill, the owner of mineral springs in Spain, was to supply the Rubinat Company with the waters of such spring, and it appeared that Emanuel did not make any claim against the Rubinat Company, or against De Bofill, nor any claim for having placed the Rubinat Company contract with De Bofill. It also appeared that it was claimed that the defendant had broken its contract with the Rubinat Company, and that the contract with De Bofill was made in consequence of such breach, and long after the making of the former contract; that the disclosure of this contract would be prejudical to the Rubinat Company, because it has a valid claim and cause of action against defendant for its breach of contract, and such disclosure will put the defendant in possession of facts that will be material in the trial of that cause of action; and that the contract between De Bofill and the Rubinat Company whs entirely immaterial in this action; and that the only way in which the transaction between the Rubinat Company and De Bofill is material is to show the amount of sales made thereunder, as a basis upon which to compute the commissions claimed by Emanuel, which were based upon the amount of the sales of water.

Charles Robinson Smith, for motion. Salomon & Dulon, contra.