Christman v. Keck (138 A.D. 654, 1910)

Cochrane, J.:

The trial of this action pending before a referee was halted to permit the defendant to procure an inspection of certain written statements delivered by him to the plaintiffs’ testator. The action is on a promissory note given by defendant. He counterclaims for legal services rendered by him as an attorney and counselor at law extending through a period of many years, and the statements in question contain matters relating to the business transactions between him and his former client. Clearly those papers are evidence in behalf of either party to this action. The plaintiffs so regarded them and offered to produce them before the referee on the trial. We think the order for the inspection was improvidently granted and without sufficient reasons appearing therefor. The only reasons given by defendant in the moving papers are as follows: “Your petitioner does not recall the details of the services which he rendered to plaintiffs’ testator during all the years since 1883, and is confident that these statements so rendered by him in confidence to said testator would refresh his recollection in many particulars so that he might testify to the services thus rendered and to many details concerning which he would be competent to testify because they would not concern any personal transaction had between your petitioner and said testator, and an inspection and copy of such statement and statements is necessary to enable your petitioner to prepare for the trial and defense ■ of this action. That without an inspection of the said statement and of each and every statement which your petitioner has rendered to said testator in his lifetime your petitioner will be unable to maintain his defense and counterclaim as efficiently herein as if he were permitted to refresh his •recollection from the said statements and papers so rendered and delivered -by him to said testator which are now under the control and in' the possession .'of these plaintiffs.” Manifestly whatever ■ benefit as thus stated by defendant lie could derive from an inspection of the documents in question would he available to him as. well after as before such documents'are admitted in evidence. The declared purpose of the inspection is solely. to refresh the defendant’s recollection. The papers can accomplish that result with undiminished efficiency .after they become evidence. As previously pointed out, the trial-of this action has already been commenced before a referee.' The- reasons which usually prompt a court to direct a discovery or inspection of papers before trial do not here apply. No time or expense is to be. saved, and there is ho question of surprise1 involved. The defendant’s rights can'he -fully safeguarded by the referee.

' The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars, costs.

All concurred, except Sewell and Houghton, JJ., dissenting.

Order reversed, with ten dollars costs and disbursements, and •motion denied, with ten dollars costs.