Memphis Trotting Association, Respondent, v. Elmer E. Smathers, Appellant

Memphis Trotting Association, Respondent, v. Elmer E. Smathers, Appellant. First Department, March 22, 1907. Inspection of books and papers — when former order of inspection not a bar to subsequent application. When on a motion to obtain an inspection of an affidavit it appeared that two affidavits have been made in different cities and contain different allegations, the granting of a motion for the inspection of one affidavit is not res adjudioaia requiring that an -inspection of the other affidavit should be denied. Appeal by the defendant, Elmer E. Smathers, from an order of the Supreme Court,, made at the New1 York Special Term and entered in the office of the clerk of the county of New York on the 21th day of December, 1906, denying the defendant’s motion to resettle an order entered in said clerk’s office on the 28th day of November, 1906,, which denied the defendant’s motion for an inspection of a certain affidavit. John J. Adams, for the appellant. John F. Cloonan, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The motion for an inspection was denied by the learned court-at Special Term upon the ground that the matter was. res adjudicata. (Memphis Trotting Assn. v. Smathers, 114 App. Div. 316.) . When a motion for inspection was before this court upon the former appeal it appeared conclusively upon the record that the affidavit of which an inspection was desired had been destroyed and for that reason we affirmed the order denying the motion, but with leave to move for the inspection of a copy thereof. Thereafter a a copy of said affidavit, purporting to have been made at Chicago, 111., was furnished to the defendant and appears in the record. It is quite evident that there were two affidavits or depositions made by one Sanders in the possession of the attorneys for the plaintiff, the one verified in Chicago and now appearing in the record, and the other designated a deposition verified in St. Louis and bearing the signature of the deponent in writing. The copy of the affidavit furnished to the defendant did not contain the alleged details of the drugging of the mare Lou Dillon as read by one reporter from an affidavit in the possession of the plaintiff’s attorneys, and, as is alleged by another reporter, as read to him over the telephone from the plaintiff’s attorney’s office. This motion was made, not to obtain an inspection of the Chicago affidavit, the destruction of which had been established and a copy of which was in the possession of the defendant’s attorney, but of the other or St. Louis deposition containing the details- of the alleged drugging, and, therefore, it is evident that the denial of the motion upon the ground that the question was res adjudicata cannot be sustained. The order appealed from should be reversed, with ten dollars costs and disbursements, and the application for an order for the inspection of the deposition, or a copy thereof if destroyed, should be granted, with ten dollars costs. Present—Patterson, P. J., Ingraham, McLaughlin, Clarke and Houghton, J J. Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion, with ten dollars costs. Settle order on notice.