Opinion
February, 1907.
Tobias A. Keppler, for motion.
Maurice J. Katz, opposed.
The action is brought to recover the value of goods intrusted by the plaintiff to the defendant for transportation, but which the defendant failed to deliver. Among other things, the answer alleges that the defendant delivered the goods to an expressman who presented an order therefor signed by plaintiff. Such an order the plaintiff asserts he never signed nor authorized, and he makes this motion to be permitted to inspect, copy and photograph such order to the end that he may be prepared, with the testimony of experts in handwriting and otherwise, to meet such evidence upon the trial. He also asks to inspect and copy the defendant's forms and books, so far as the same contain entries relative to the receipt and transportation of the goods in question. In resisting the motion the defendant cites a large number of cases, most of which relate to motions for examination before trial. Others, like Phillips v. Curtis, 70 A.D. 551, show attempts to rove through a defendant's private papers in the hope of discovering something to the plaintiff's advantage. But in this case the plaintiff seeks only to see the records of the defendant's transactions with him, and concerning the single matter in dispute, and to see and photograph a paper claimed to have been signed by him. The plaintiff's right to what he asks is manifest as a matter of fairness, and is abundantly established by the authorities. Umfreville v. Manhattan R. Co., 46 A.D. 594; Bamberger v. U.S. Fidelity Guaranty Co., 37 Misc. 512; Moore v. Encyclopædia Britannica Co., 43 id. 618; Rhoades v. Schwartz, 52 A.D. 379. The defendant also raises the point that, although the order substituting the plaintiff's present attorney in place of his prior one was served, there was no notice nor service of the earlier order substituting such prior attorney in place of the original attorney who commenced the action. I cannot see that this fact affects the defendant. The order served sufficiently shows the authority of the present attorney as between the plaintiff and the defendant.
Motion granted, with ten dollars costs.