WALMSLEY v. NELSON

WALMSLEY v. NELSON. N. Y. Supreme Court, First Department; Chambers, November, 1877. Discoveby and Inspection.-—Laches in Moving. Where defendant had offered to produce, and to allow the plaintiff to inspect all the hooks, papers, &c., which he would, in any event, be entitled to examine, and he had refused to avail himself of the offer, and the production of the books was not indispensably necessary, but simply a precautionary measure ;—Held, that a discovery and inspection of books, &c., should be denied. Where an employee had rendered statements of transactions, at the time they occurred, and his accounts had been balanced at the end of each year, and he had acquiesced in their correctness for several years ;—Held, that he was not entitled to an order for discovery and inspection, without specifically alleging fraud, or error, which he could not discover at the time. Where a plaintiff had allowed his claim to sleep for five years, and the defendant had been examined, after issue, as a party before trial;— Held, that it was too late far plaintiff to ask an order for a discovery of books, &c., before the trial. Motion by plaintiff for discovery and inspection of books. Eobert Cr. Walmsley brought this action against William Nelson, Jr., to recover $1,437.23, for money paid out and expended by the former for and on account of the latter, while in his employ, from May 1869, to October, 1872. The summons and complaint were served on the defendant on April 5, 1877. The defendant answered May 12, 1877, by a general denial, and by setting up asa defense that plaintiff, while in defendant’s employ, under a salary, had collected moneys for him, and had failed fully to account for them, and asked for an accounting and that he should recover by way of counter-claim the amount found due him from the plaintiff. On September 27, 1877, the plaintiff obtained an order to show cause why discovery and inspection of defendant’s books should not be granted. The petition for the order showed that the only account the plaintiff kept of the moneys he expended for the defendant, was by retaining the vouchers therefor, for a short time, and then delivering them to defendant, when they were entered upon defendant’s, books of account. That he, the plaintiff, kept no-books of account whatever, but relied entirely upon the defendant to do so, and the latter had in his exclusive possession, and under his control, the books, papers, documents, and memoranda, containing evidence relating to the goods sold by him, for which he was entitled to a commission, besides his expenditures. That he had no other means of fully proving his case, and that it was material and necessary for him to have-the discovery before he could safely proceed to trial. That he had applied to defendant for permission to examine the books, &c., but had been refused. The affidavits, opposing the motion, showed that the defendant had already been examined as a party before trial in the action; that he had a suit pending* and soon to be tried against the city of New York* which involved more than $50,000, in which he believed the plaintiff would be called as a witness against, him; that the plaintiff had allowed his alleged claim to sleep from October, 1872, to April, 1877, when the said action against the city of New York was about to. "be tried, and he believed the discovery was with a view to enable him to give testimony against him; that the accounts demanded were very voluminous, and it would require many days to go over them, and it would greatly prejudice the defendant while he was preparing for the trial against the city, to submit them to the plaintiff; that the accounts between the plaintiff and defendant were examined, and stated, and a balance struck by them annually, in the beginning of each year; that after the plaintiff had been discharged in October, 1872, he was furnished with a correct statement of the account from the settlement in January of that year, showing how the account between him and defendant stood on the latter’s books, and that that statement of account had been seen in plaintiff’s possession within a month ; that according to plaintiff’s bill of particulars, it appeared that his cause of action was based solely upon transactions during the last year of his employment; that in pursuance to an agreement with plaintiff’s attorney, the books, papers, and vouchers containing the record of the transactions between the plaintiff and defendant during that period had been taken to the office of defendant’s attorney at an appointed time, and that the plaintiff came there with two other persons to examine them, but upon their being produced, refused to do so, because they were not all the books, &c., relating to the transactions during the whole time of his employment from 1869 to> the time of his discharge. Vanderpoel, Green & Cuming, for motion. William B. Putney, opposed, Cited, Van Zandt v. Cobb, 12 How. Pr. 544; White v. Monroe, 12 Abb. Pr. 357; Harbison v. Von Volkenburg, 5 Hun, 454; Campbell v. Hoge, 2 Id. 308 ; 2 Wait's Pr. 530, 532 ; Com. Bank of Albany v. Dunham, 13 How. Pr. 541; McAllister v. Pond, 15 Id. 229; Pegram v. Carson, 18 Id. 519 ; Hoyt v. Am. Exchange Bank, 1 Duer, 652; Thompson v. Erie Railw. Co., 9 Abb. Pr. (N. S.) 212. Compare Saunders v. Jones, 37 L, T. R. N. S. 395 : an important case under the new English procedure. [MAJORITY — Lawrence, J.] Lawrence, J. The motion for a discovery and inspection of the books and papers is denied, with costs, for these reasons: First. That it appears that the defendant has offered to produce, and to allow the plaintiff to inspect all the books, papers, &c., which the plaintiff would in any event be entitled to examine, and that the plaintiff has declined to avail himself of such offer. Second. I do not think that the production of the books, papers, and documents, is indispensably necessary. It would rather appear that this application is simply a precautionary measure. The order is not granted in such cases (Campbell v. Hoge, 2 Hun, 308). Third. The plaintiff seems to have furnished the defendant with proper and accurate statements of the accounts between them at the time the transactions transpired, and it is now too late for the plaintiff to undertake to go behind those statements without, at least, specifically alleging that there was some fraud on the part of the defendant, or some error which the plaintiff had not means of detecting at the time the' statements were delivered (Harbison v. Von Volkenburg, 5 Hun, 454). Fourth. That the application is made too late.