Opinion
June, 1904.
John Burlinson Coleman, for the appellant.
Vincent P. Donihee, for the respondent.
The real object of the examination is to obtain an inspection of the books of the company, although in form the application is to examine its president. We say "in form" because the examination of the president is a mere incident to what is really sought, namely, an inspection of the books.
This is reversing the order of things and such practice is not sanctioned by any of the provisions of the Code of Civil Procedure. Subdivision 7 of section 872 of the Code of Civil Procedure, which relates to the examination and inspection of the books of a corporation, is authority only for their production in connection with the examination of a witness who is able to testify from them. A proceeding for the discovery of books and papers under sections 803-809 of the Code of Civil Procedure is entirely distinct.
Where it is shown that an examination of a witness is "material and necessary," and that, in order that he may supplement his knowledge, books are essential, it is competent to require him on the examination to have the books for the purpose of furnishing such data or information as he may not be able personally to supply. The books are thus used merely as an incident to and in connection with the oral examination of the witness who can testify from them, and their production under such circumstances is not for the purpose of allowing an inspection and examination of them by the adverse party. In Press Publishing Co. v. Star Co. ( 33 App. Div. 243) it was said: "Its object is that if a reference to the books becomes necessary during the examination either to corroborate or contradict a witness or to make the proof preliminary to the introduction of the books in evidence upon the trial, such proof may be made and the books may be referred to for that purpose." Similarly in Mauthey v. Wyoming County Co-Op. Fire Ins. Co. ( 76 App. Div. 581) it was said: "When the party sought to be examined is a corporation, its books and papers may be directed to be produced as subsidiary to the oral examination. This does not, however, permit an inspection or examination of the books and papers of the defendant as is permissible under the other procedure referred to. * * * The primary purpose of the proceeding is the oral examination * * *. In order, however, that it may not be rendered fruitless * * * the books * * * are required to be produced as an adjunct of the oral examination."
To entitle the applicant to the examination of the company's president, therefore, he should make it appear that the examination of the person sought to be examined is material and necessary. ( Leary v. Rice, 15 App. Div. 397.) It does not so appear, but, on the contrary, it is shown that the person sought to be examined was not, at the time when the transactions involved in the suit are alleged to have occurred, connected with the company, and he could not, therefore, have any personal knowledge of such transactions. The question thus resolves itself into whether a plaintiff who states that he intends to begin an action and serve a summons, can, by moving for the examination of a defendant's president, who knows nothing of the facts involved, under the guise of such an examination, obtain an inspection of the defendant's books.
As pointed out, sections 870-873 of the Code of Civil Procedure provide for the examination of a party or a witness "whose testimony is material and necessary" and if the party sought to be examined is a corporation, for compelling the witness to bring the books and papers which may be required in connection with his oral examination to make it complete; and if what is sought is only an inspection of the books and papers, the applicant should move and bring himself within sections 803-809 of the Code of Civil Procedure. The applicant, therefore, proceeded under the wrong sections of the Code of Civil Procedure, and the motion to vacate the order for the examination should have been granted.
The order appealed from is accordingly reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the company's president granted, with ten dollars costs.
VAN BRUNT, P.J., McLAUGHLIN, HATCH and LAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.