Livingston v. Curtis

Daniels, J.

The applications made were supported by peculiar circumstances. The plaintiff is the executrix of her deceased husband, who, up to a few months previous to his decease, was a copartner with the defendant. A settlement was had with him while he was in a feeble condition, in which he afterward informed the plaintiff that at least one important credit had been omitted. And she, believing the information to be correct, after being denied the opportunity to have the books of the firm examined in order to test the accuracy of her information on the subject, brought this action to correct the settlement. JFor the purpose of entitling herself to an order allowing the partnership books to be examined, she showed that the settlement with her husband and the sale of his interest to the defendant, took place when his health was feeble, and on that account was unable to devote critical attention to the business transacted. He was, for that reason, peculiarly liable to be mistaken, and under the circumstances exceedingly apt to rely upon any assurances which might be given to him, and the persistent opposition of the defendant to an examination of the books and accounts of the firm has a direct tendency to support the conclusion that some mistake of the nature of that alleged had intervened in the settlement that was made. The defendant denied *374that such .was the case, and may be entirely accurate in that denial. But it is not the object of the law to sanction the trial of these disputes upon the conflicting affidavits of the parties. Another mode has been provided for that purpose in which the facts are to be exhibited upon which the conclusions must be placed by a disinterested tribunal.

The facts set forth by the plaintiff, if established, would constitute a cause of action. And she believes they can be established by an examination of the partnership books. To them and the memory of the defendant she desires to appeal for evidence to support her claim and enable her to frame her complaint with a degree of particularity required by the practice of the courts. Without the inspection she has shown her inability to do that, and if that is denied her the action contemplated and already begun, must necessarily fail. These facts were sufficient to bring her application for the discovery within the provisions made by the established rules of this court upon this subject. The authorities relied upon by the defendant’s counsel do not require or justify a denial of that application. The only one directly opposed to it is that of Platt agt. Platt (11 Abb. [N. S.], 110), in which it seems to have been held, under circumstances somewhat similar to those now presented, that the examination of the books can only be had after judgment. Such an examination can be of no practical benefit to the plaintiff, and the authority is in direct conflict with the rules of the court, which allow it to be ordered for the purpose of enabling the plaintiff to frame her complaint (Rule 18, sub. 1).

The order denying the application for an inspection and examination of the partnership books should be reversed and an order directed requiring the books and papers of the firm to be produced and subjected to such inspection and examination for such a period of time as will enable the plaintiff to have them thoroughly examined by any competent person selected by her for that purpose.

*375While that may be proceeding, no necessity for the examination of the defendant appears to exist. After it has been had, that may become manifestly proper. For that reason the order denying the application should be so far modified as to permit its renewal hereafter, if that shall prove to be necessary.