Upon an examination of the papers presented in this case there does not seem to have been any reason for the making of the application. There had been no demand and refusal to give the defendant that which he sought to obtain by this motion, and the court should not be called upon to entertain applications of this description until the necessity for the exercise of its power has occurred; and the more especially so when, as in the case at bar, the plaintiff has signified his willingness that the party seeking the inspection may have free access to the books sought to be examined, for the purpose of making such examination and taking such copies of the books as he may choose. We think that the learned judge at special term upon this ground should have denied the motion, and, had it not been for the concession made by the appellant’s counsel upon the argument, we should have been inclined to reverse the order and deny the motion, with leave to renew the same in case the plaintiff refused to allow the examination and the taking of the copies offered, in his affidavit used to oppose the motion. The order proposed by the appellant seems to give to the defendant all the rights to which he under any circumstances would be entitled. The order appealed from is therefore reversed, and the order suggested by the appellant’s counsel is directed to be entered instead thereof, without costs of this appeal to either party.
Bartlett and Daniels, JJ., concur.