Opinion
November Term, 1901.
Present — Goodrich, P.J., Bartlett, Hirschberg, Jenks and Sewell, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
The defendants have procured an order compelling the plaintiff to produce for the defendants' inspection the account books of a foreign corporation not a party to the action. The plaintiff, under oath, denies custody, possession, control, power, authority or right to the books, and avers that they are in the possession, custody and control of the secretary of the company, whom he names, pursuant to the resolution of the board of directors. These allegations are unrefuted. The defendants' counsel admits in his brief that "after an exhaustive research" he can find no authority in point. The case of Martine v. Albro (26 Hun, 559) related to books which were in the defendants' undisputed possession, and which they had already produced for inspection pursuant to a prior order. As the order appealed from herein relates to books not within the terms of section 803 of the Code of Civil Procedure as to possession or control, either literally or constructively, it must be reversed and the motion denied.