Dimont M. Caldwell, Respondent, v. Mutual Reserve Life Insurance Company, Appellant

Dimont M. Caldwell, Respondent, v. Mutual Reserve Life Insurance Company, Appellant. (Nos. 2, 4 and 5.) First Department, July 12, 1906. Discovery of books of insurance company — order modified on condition that defendant produce books on trial. An order for the inspection of the books and papers of an insurance company should not require the deposit thereof in the county clerk’s office. Order allowing such inspection reversed on condition that the defendant stipulate to produce the books and papers on trial. Appeal by the defendant, the Mutual Reserve Life Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of May, 1906, directing “ that the defendant give to the plaintiff a discovery and inspection and permission to take copies of all the records described in said petition, including the certifícate book or books of record containing a record of all business done within the United States of America from the 22d day of June, 1881, to the 14tli day of December, 1905, upon the policies procured by this plaintiff or his agents, in accord- ■ anee with the list set forth in the plaintiff’s complaint herein, including the policies of the Mutual Endowment Assessment Association of Baltimore and of all other books, records and papers which will show the amount of said policies, the amount of admission fees paid thereon and the date thereof, the amount of the annual dues received thereon and the date of payment thereof and how long such annual payments continued, and the books, papers and records' concerning the business of the said Mutual Endowment Assessment Association of Baltimore, showing the amount of the policies and the annual dues paid thereon and the amount thereof, and how long said annual dues were paid. And it is further “ Ordered that, for the purpose of obtaining such copy and inspection, the defendant forthwith grant access to its office in the Borough of Manháttan, City of New York, to the plaintiff, his attorney, agent or accountants, and permit him, his attorney, agent or accountants, to have access to such books, records and papers during the hours between 9 and 2 o’clock of each business day until such examination and copy is made.” George Burnham, Jr., for the appellant. Rastus S. Ransom, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The order for inspection in any event is too broad, and that part of it directing deposit of books, papers and records in the clerk’s office of the county of Rew York should be stricken out. In view, however, of the long delay on the part of the plaintiff in asking for inspection of defendant’s books and the character of the action and the similarity of the contract involved to that construed by this court in Caldwell v. Mutual Reserve Fund Life Assn. (53 App. Div. 245), we think this appeal should be disposed of by providing that in case the defendant shall, within ten days after entry of order hereon, file with the county clerk and deliver to plaintiff’s attorney a stipulation that it will, on the trial of any of the actions herein, produce in court for inspection of plaintiff and his counsel any of the books, records and papers mentioned in the order appealed from which the trial court may direct to be produced, then, the order shall be in all respects reversed, without costs. In case the defendant shall refuse to file and deliver such stipulation, then the order appealed from, after striking therefrom that part requiring a deposit of books, as so modified is affirmed, with costs. Present — O’Brien, P. J., McLaughlin, Laughlin, Clarice and Houghton, JJ. Order reversed, without costs, on defendant stipulating as indicated in opinion; if such stipulation he not given, order modified as stated in opinion, and as modified affirmed, with costs. Settle order on notice.