A. Ames Howlett, Appellant, v. Frank B. Hall, Respondent

A. Ames Howlett, Appellant, v. Frank B. Hall, Respondent. Partnership looks — each pa/rtner is entitled to examine them at all reasonable times — the designation of an improper place therefor is not a ground for refusing it. Although the remedy which would be accorded to a third person seeking to examine firm books would be by a subpoena duces tecum returnable on the trial of an action, each of the partners is entitled to examine the books at all reasonable times, which right is not affected by the dissolution of the firm. The fact that the place designated for the examination of such books, in an application therefor by one partner, is not proper or suitable, is not a sufficient reason for denying the application. Appeal by the plaintiff, A. Ames Howlett, from an order of the Supreme Court, made at the Hew'York Special Term and entered in the office of the clerk of the county, of Hew York on the 12th day of October, 1900, denying his motion for a discovery and inspection of books in the defendant’s possession. The relief sought in this action is the cancellation of a note for $3,200 given by the plaintiff, as alleged, under the defendant’s wrongful representation that, in the course of the partnership, the plaintiff had overdrawn his account about $6,400. The complaint avers that there was no such overdraft of $6,400, and that the defendant having exclusive control of the partnership books would not permit the plaintiff to examine them. After issue ivas joined, the plaintiff applied for an order directing the defendant to accord him an examination of the books in the office of the defendants’ attorneys, by depositing them' there for plaintiff’s inspection. In support of the application it is stated that the plaintiff during the partnership had been ill and never had a full opportunity to examine the books and had relied upon defendant’s statements when he gave the note for $3,200, which statements, he now alleges, were untrue. In opposition to the application, the defendant stated that the partnership had been dissolved by mutual consent, and the question of accounts left to an arbitrator who found that the plaintiff had overdrawn and recommended a compromise; that the plaintiff had access to the note for $3,200. The defendant’s affidavit also contains the statement that, owing to the plaintiff’s illness, he has not devoted to the partnership business from its formation to its dissolution, more than five days in a period of two years. The plaintiff’s application for an examination was denied, and from the order so entered, he appeals. Pierre M. Brown, for the appellant. Charles J. Hardy, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The right of a partner to a disclosure of partnership books rests upon entirely different principles than the rights of third persons to have a disclosure, it being usual almost as matter of course to grant such examination and inspection to a partner. (Kelly v. Eckford, 5 Paige, 548; Stébbins v. Harmon, 17 Hun, 445.) And it is only where it can be seen that the application is made in bad faith that he will be refused the privilege. The fact that the partnership is dissolved does not change the rule, the courts recognizing the right of a former partner to have access to the books at all reasonable times. (Bearns v. Burras, 86 Hun, 258.) It is conceded that a partnership existed here between the parties; that it was dissolved, and that during its existence the books were in the exclusive custody and control of the defendant; and it is thus apparent, that without opportunity for examination the plaintiff cannot obtain the facts necessary to prove the allegations of the complaint, that, by false representations, he was induced to give a note foi- a larger amount than he actually owed. It was suggested at Special Term that the evidence desired could be obtained oh the trial by a subpoena duces tecum. Although this is the remedy that would ordinarily be accorded to a third person who sought to examine the firm’s books, it has no application where one of the partners is. asking for an opportunity to see and examine what are really his own books. ¡Nor do we think the further objection that a casual inspection was on one occasion granted the plaintiff, is a sufficient reason for refusing his request, because, apart from the fact appearing that he was unable on that occasion to get. the information desired, he is entitled at all reasonable times to an examination of the partnership books. They belong to him just as much as to the defendant, and the fact that the latter has taken control and possession of them is not sufficient ground for preventing the plaintiff, within proper bounds, having access to them. Here the plaintiff wished to have the books deposited in the office of the attorneys for the defendant —a disposition which, without; their consent, the court could not make. The fact, however, that the place designated was not proper or suitable, is not sufficient cause for denying an examination at some other place, either by requiring the deposit of the books in court or by the parties agreeing upon some place where, without injury to the defendant ■— if these same books, are still being used by him — the plaintiff could obtain the examination asked for. If the parties cannot agree as to the place, it will be fixed by the court on the settlement of the order. : We think the order shoiild, accordingly, be reversed, with ten dollars costs and. disbursements, and the motion granted, with ten dollars costs to abide the event. Van ¡Brunt, P. J., ¡Rumsey, Patterson and' McLaughlin, JJ... concurred; Order reversed, with ten dollars costs and disbursements, and motion '.granted, with ten dollars costs to abide event.