Opinion
Argued November 11, 1879
Decided November 18, 1879
J.M. Boorman, for appellant. Charles D. Burrill, Jr., for respondent.
The order obtained by the plaintiff was threefold. It required, First. That several persons, not parties to the action, but directors of the defendant, should appear before trial and testify on plaintiff's examination. It was not claimed that this clause had any support unless it could be found in section 870. That it cannot, was determined in The People v. Mutual Gas Light Co. ( 74 N.Y., 434), a case in this respect similar to the one before us. Second. That these persons should, at the same time, produce certain books of the defendant for the plaintiff's inspection; and Third. Give him sworn copies of certain entries. There is no warrant for either direction. The books and papers are not shown to be in the custody or under the control of the persons named, nor are the proceedings in any respect such as the statute indicates for that purpose. The sections of the Code (§§ 803-806) referred to by the learned counsel for the appellant, permit the court, in cases prescribed by the general rules of practice, to compel a party to an action to produce books and papers for his adversary's inspection, and to be copied by him; but the plaintiff's proceeding is not against the party, and as that defect is fatal to his appeal, it is unnecessary to specify others.
The order appealed from should be affirmed, with costs.
All concur.
Order affirmed.