Opinion
January 5, 1961
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, McClusky and Henry, JJ.
Order unanimously affirmed, with $25 costs and disbursements without prejudice to renewal of the motion if so advised, in accordance with the memorandum. Memorandum: Special Term properly refused to grant discovery and inspection of books and documents under section 324 of the Civil Practice Act for the moving papers contain no facts showing the materiality and necessity of the records sought. Plaintiff further failed to allege the relevancy of the specific records and documents or to demonstrate their admissibility in evidence on the trial of the issues. ( Milberg v. Lehrich, 2 A.D.2d 860.) It is fundamental that discovery and inspection should be restricted to books and documents "relating to the merits of the action". ( Paliotto v. Hartman, 2 A.D.2d 866. ) Plaintiff has not sought an examination before trial. It may well be that such an examination would furnish plaintiff with all of the information it needs to prepare for trial. If after conclusion of an examination before trial plaintiff is advised to move again for discovery and inspection, the affirmance of the order herein is without prejudice to the remaking of the motion. (See City Messenger Serv. of Hollywood v. Powers Photoengraving Co., 7 A.D.2d 213.) We do not, of course, pass on the merits of such a renewal of the motion.