The rule contended for by defendants is that which prevailed in chancery. Even under the re» *215vised statutes it might have been difficult to obtain the discovery here sought. Under the Code, however, and especially under the Code of Civil Proeeedure, the practice is more liberal and just. As long ago as 1849, it was held (in Powers v. Elmendorf, 4 How. Pr. 60; s. c., 2 Code R. 44), that the court had power to compel a discovery, on plaintiffs motion, of the defendant’s documentary evidence. Judge Hakkis’s reasoning is clear and convincing; and the case lias never since been overruled.*
The eases referred to by defendant’s counsel are not directly in point, and upon careful examination do not con*216flict with Powers v. Elmendorf. This is especially true of the case in this court of Douglass v. Delano (20 W. D. 85). The receipts sought to be there discovered were not set up in the answer, which simply asserted the independent fact of an outside occupation of the premises ; and the application was an attempt to obtain proof which might rebut the effect of such occupation, and of the payment of rent by persons other than the original tenants. The question was not' considered at all in Andrews v. Townshend (2 Civ. Pro. R. 76). And it does not even appear whether the doenmenis were specifically set up in the answer. The chancery rule was stated as the rule to-day, but no reference was made to the Code nor to Powers v. Elmendorf.
Why the exception of alleged forgery should he made if the question is one of power and not of discretion, is not stated. But if such exception is admissible, an inspection of a document not forged, which the plaintiff has never seen, and which bears crucially upon his rights, should equally be excepted. Here, in the defendant’s own pleading the document is actually interwoven, with the plaintiff’s certificate and case. It would be monstrous to compel them to go to trial with no previous preparation possible to meet the paper. They cannot know the defendant’s ease without an inspection. The document goes to the very merits of the action, and is not. to be treated as evidence in support of an averment;
The second point is plainly without force. There is no yule which requires each member of a firm to make oath that he knows nothing of the document. The papers are reasonably sufficient, and come within the rules of practice.
The motion must therefore be granted (and as plaintiffs asked for this paper and were refused without reason or justice), with costs.
Order accordingly*.
It was there held that the omission from the Code of Procedure, (§388) of the provision in 2 B. S. 199, §22—restricting discovery to cases within the principle and practice of the Court of Chancery—indicated that it was not intended to confine discovery to the case of documents which the appellant wished to use in support of his own case, and on the other hand the provision authorizing the court to enforce obedience to an order for discovery not merely by non-suit or the precluding of the defenses affected (as under 2 K. S. 200, § 2(1), but by precluding the party refusing discovery from using the document in his own behalf as evidence, showed that the power of the court, under the new Procedure, is extended to ordering a defendant to deliver copies of documents in his possession, or under his control, upon which he would rely on the trial to sustain an allegation in his answer.
Harris, J., said: “ The power thus conferred upon the court is, In my judgmept, better adapted to attain the ends of justice than the more restricted power it before possessed. I can see no good reason why a party should be permitted to withhold from the knowledge of his adversary documentary evidence affecting the merits of the controversy, only to surprise him by its production at the trial. Unless for some satisfactory reason to be made apparent to the court, each party ought to he required, when it is desired, to disclose to the other any books, papers and documents within his power which may contain evidence pertinent to the issue to be’tried. If the evidence thus disclosed should he conclusive upon the issue, the parties may be saved the expense of a trial—and if not, they will come to the trial upon equal terms, each prepared, so far as the evidence within his reach will, enable him to do so, to maintain his side of the controversy. This t believe to have been the intention of the Legislature, aud this I regard, as the-true construction of their enactment on. this subject,” Powers, Elmendorf, 4 Hoto. Pr. 60.
The order was in the following form:
An order having been heretofore on November 26, 1886, entered in this action directing the defendant herein to allow the plaintiffs herein *217on or before November 30, 1880, to inspect a certain paper or certificate dated September 23, 1882, referred to in the petition on which said order was granted, and to take a copy of said paper or certificate, or in default thereof to show' cause before this court why such inspection with copy should not be allowed; and the said defendant having appeared and failed to show sufficient cause why such inspection with copy should not be allowed:
Now on reading and filing copies of said order to show cause and of the petition on which the same was granted, and on the pleadings and proceedings herein, and after hearing John E. Burrill, Esq., of counsel for the said plaintiffs, in support of said motion, and George W. Wickersham, of counsel for the said defendant in opposition thereto:
It is on motion of Goo. W. Seligman, attorney for said plaintiffs: Ordered that the said defendant produce at the office of the said plaintiff's said attorney, at No. 15 Broadway, in the city of Now York, on November 28, 1886, at 12 o’clock in the noon, the aforesaid paper or certificate, and there allow plaintiffs or their said attorney to inspect the same, and to take a copy thereof.
And it is further ordered, that the said defendant pay to the said plaintiffs $10 of the costs of this motion.
The opinion in the case of Douglas v. Delano, 20 Weekly Big. 85, cited in the opinion on p. 216 of the text, put the denial of the motion upon two grounds. First, That the receipts sought were not in the possession or under the control of the defendant; and second, on the chancery rule, which is held superseded in the text and the case in 2 Hun, cited as authority on the latter point. Campbell v. Iloge, 2 Hun, 308; s. c., 4 Supm. Gt. (T. & G.) 540, does not turn on the point, but supports the first ground on which the motion was denied, and holds that if the papers are in the possession or under the control of the applicant, he cannot have an order that the other party discover them. .