Opinion
June Term, 1901.
Grosvenor Nicholas, for the appellant.
Delos McCurdy, for the respondent.
Present — VAN BRUNT, P.J., PATTERSON, McLAUGHLIN, HATCH and LAUGHLIN, JJ.
Order affirmed, with ten dollars costs and disbursements, on the opinion of the court below.
The following is the opinion of FREEDMAN, J., delivered at Special Term:
This motion is made to vacate an order obtained ex parte, appointing a referee herein, and ordering that the defendant be examined as an adverse party and his deposition taken pursuant to section 873 of the Code of Civil Procedure, and also that the defendant produce for inspection the articles of copartnership and all the books of the firm of John Bloodgood Co., formerly composed of John Bloodgood and defendant. Upon the hearing of the motion the defendant interposed the preliminary objection that an order for the examination of the defendant under section 873 of the Code of Civil Procedure and an order for the examination and inspection of books are distinct and independent proceedings and cannot be united under one order. This objection seems to be well taken. ( Lefferts v. Brampton, 24 How. Pr. 257; Havemeyer v. Ingersoll, 12 Abb. Pr. [N.S.] 301.) An absolute order for an inspection of books is improper. ( Dick v. Phillips, 41 Hun, 603; Francis v. Porter, 88 id. 325.) In a proper case under sections 872 and 873 of the Code of Civil Procedure, a witness may be required to produce books and papers as an adjunct to his oral examination and to refer to them for the purpose of making his examination effective. ( Drake v. Weinman Co., 12 Misc Rep. 65; Fenton v. Dempsey, 10 N.Y. St. Repr. 733.) But a proceeding for the inspection of books must be commenced by petition. (Code Civ. Proc. § 805; Dick v. Phillips, supra; Francis v. Porter, supra.) The motion is granted, with costs.