Opinion
February 3, 1959.
Appeal from the Supreme Court, New York County, MORRIS E. SPECTOR, J.
Eugene H. Nickerson of counsel ( Edward J. Pastucha with him on the brief; Hale Stimson Russell Nickerson, attorneys), for appellant.
David O. Kuh for respondent.
This appeal is from an order denying defendant's motion for a discovery and inspection of plaintiff's books and records pursuant to section 324 of the Civil Practice Act.
It appears that plaintiff, in the course of an examination before trial, refused to produce certain books and records as demanded in the notice of examination. Defendant in consequence moved for a discovery and inspection. The better practice, it would seem, would be for defendant to await the conclusion of the examination at which time it can be determined whether a discovery is necessary.
It may be added that it is clearly the plaintiff's obligation to produce its books and records for use pursuant to the provisions of section 296 on the examination before trial.
The court below indicated that an examination to establish defenses would be improper where plaintiff has the burden of proof. We have often held that if information requested by a defendant is essential in preparing its case for trial, such information should be forthcoming regardless of who has the burden of proof on the issue. The duty of the plaintiff to produce the information sought is therefore not affected by the fact that plaintiff has the burden of proof. Nor is the fact that the plaintiff is a California corporation sufficient reason for not producing the books, inasmuch as it invoked the jurisdiction of this court.
The order should be modified, in the court's discretion, so as to deny the motion without prejudice to renewal upon completion of the examination before trial. No costs.
BREITEL, J.P., RABIN, M.M. FRANK, VALENTE and McNALLY, JJ., concur.
Order unanimously modified, in the exercise of discretion, so as to deny the motion without prejudice to renewal upon completion of the examination before trial, and, as so modified, the said order is affirmed, without costs.