Opinion
July 12, 1906.
George Burnham, Jr., for the appellant.
Rastus S. Ransom, for the respondent.
Present — O'BRIEN, P.J., McLAUGHLIN, LAUGHLIN, CLARKE and HOUGHTON, JJ.
The order for inspection in any event is too broad, and that part of it directing deposit of books, papers and records in the clerk's office of the county of New York should be stricken out.
In view, however, of the long delay on the part of the plaintiff in asking for inspection of defendant's books and the character of the action and the similarity of the contract involved to that construed by this court in Caldwell v. Mutual Reserve Fund Life Assn. ( 53 App. Div. 245), we think this appeal should be disposed of by providing that in case the defendant shall, within ten days after entry of order hereon, file with the county clerk and deliver to plaintiff's attorney a stipulation that it will, on the trial of any of the actions herein, produce in court for inspection of plaintiff and his counsel any of the books, records and papers mentioned in the order appealed from which the trial court may direct to be produced, then the order shall be in all respects reversed, without costs. In case the defendant shall refuse to file and deliver such stipulation, then the order appealed from, after striking therefrom that part requiring a deposit of books, as so modified is affirmed, with costs.
Order reversed, without costs, on defendant stipulating as indicated in opinion; if such stipulation be not given, order modified as stated in opinion, and as modified affirmed, with costs. Settle order on notice.