Titus v. Cortelyou

Harris, J.

It is the right of a party, when required to produce books for inspection, if such books contain accounts and transactions which in no way relate to the subject of examination, to seal up such parts of the books, so that they shall not be exposed to the observation of those who have no right to examine them. Mr. Hoffman, in his excellent treatise on the practice in the master’s office, in referring to the production of books, uses the following language. “ If books are produced before the master with portions sealed up, the party’s oath of their not relating to the matters in question, must be taken in the first instance as sufficient. But if the adverse party can shew any fair- grounds for supposing any part has been sealed *446which is material, whether designedly or not, he may require it to be opened. And if this is refused, upon certificate of the master that in his opinion such part should be opened, the court would compel it.”

Thus it will be seen, that according to the settled practice in such cases, the plaintiff, before coming to this court for an order directing that part of the book which had been sealed up to be opened, should have applied to the referee in the first instance, for such an order. It appears, however, in this case, that no such application was made; and further, that there was nothing before the referee shewing that such an order would have been proper. But if it were proper to make the application to this court in the first instance, there is nothing in the papers upon which the application is founded to shew that there is any thing material to the matters in question between the parties in those pages of the book which have been closed up, or which would justify the court in making an order to subject those pages to inspection. The only evidence which has been produced to show the materiality of the entries upon those pages, is in the affidavits of Aaron Sutton and John Lloyd, both of whom are shewn by the defendant to have obtained the information they have in relation to the contents of that part of the book which is sealed up, by an examination after the pages had been closed up, and the book deposited with the referee; an act for which they are clearly punishable, as for a contempt. For the court will always protect parties against a violation of rights of this description, by .proceeding against the offender, as for a contempt. But the affidavits themselves do not shew enough to justify an order to subject to inspection that part of the books which has been closed up, upon the oath of the defendant, that the entries it contains relate exclusively to his private business.

An order must therefore be entered discharging the" order to shew cause; and directing that the plaintiff pay the defendant twenty dollars for the costs of opposing this application.