Ashley v. Whitney 22 Jones & S. 540, 54 N.Y. Super. Ct. 540

DWIGHT ASHLEY, as Ex’r., &c., Appellant, v. JAMES M. WHITNEY, et al., Respondents.

Order for discovery and inspection of books of account not granted, except on allegations of specific error or fraud—General allegations of incorrectness insufficient.

Before Sedgwick, Ch. J., and O’Gokman, J. .

Decided May 2, 1887.

Appeal from order made at Special Term denying a motion made by plaintiff for discovery, inspection, and copies of the defendants’ sale books, etc., containing transactions with plaintiff’s testator from 1879 to 1885.

The Court at General Term said:—“ The granting or denial of this motion was in the judicial discretion of the court, and there is nothing before us to show that the discretion has been abused. The petition of the plaintiff disclosed his reasons for suspecting the general incorrectness of the defendants’ accounts, and for his expectation that testimony to prove errors can be found in the books. But he does not specify any error or fraud in the accounts detrimental to plaintiff’s intestate, and the examination applied for would, if it had been granted, lead only to a search for evidence without any special aim or special subject of inquiry. This is not the legitimate object of the motion.”

Abel E. Blackmar, for appellant.

W. H. Arnoux, for respondents.