Opinion
November 14, 1906.
Samuel F. Moran, William L. Marcy, William M. Wheeler and Louis E. Desbecker, for the appellants.
Edward C. Randall and Simon Fleischman, for the respondents.
We think the moving papers wholly fail to show any proper ground upon which the order in question can be based. The substance of the allegations is that the defendant, the city of Buffalo, through its officers, has caused certain investigations to be made relating to plaintiffs' alleged cause of action against the defendant; that some of the information thus obtained has been put in the form of maps; that some is in the shape of records, and some in the minds of such officers. And the plaintiffs allege that it is desirable, indeed essential, that all such information should be given to them, so that, among other things, their experts may study and analyze the same and thus be sure that it is correct.
There is no authority for granting such an examination for such a purpose. We think it is not the law that a defendant who, for the purpose of defending an action threatened to be brought against him, investigates, and as a result learns certain facts relating to such cause of action, may be compelled to give such facts and the result of such investigation to his adversary. If the maps, records, etc., are public records the plaintiffs have the right to examine and inspect them at all reasonable times, but the custodian or officer making them may not be examined to the end that it may be ascertained whether or not the officer making them made them correctly.
So far as appears, the plaintiffs had the same opportunity to make the investigations which the defendant did make; could have made maps and a record of the data and facts found, exactly as the defendant is alleged to have done. Every illegal or wrongful act alleged to have been done by the defendants or either of them was done openly and with the knowledge of the plaintiffs. The result of such acts was equally notorious. The fact that the defendant noted such acts and made a record of the same, or of the results flowing therefrom, does not entitle the plaintiffs to the same. Attention has not been called to any case which holds that under such circumstances a party may be compelled to disclose to his adversary the facts within his knowledge thus obtained.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.