Beyer v. Keller

McNally, J.

(dissenting). Involved is the power to compel the defendants-appellants to discover the signed statement of the mother of the infant plaintiff in an action for personal injuries.

*429In Urbina v. McLain (4 A D 2d 589), decided November 26, 1957, we denied the discovery of the statement of a witness holding that it did not relate to the merits of the action because the document sought to be inspected was not evidence. In Totoritus v. Stefan (6 A D 2d 123), decided July 1, 1958 by a divided court, this court affirmed an order directing the defendant to furnish copies of a statement made by the plaintiff to the defendant’s investigator. In so doing the majority observed the statement was obtained before plaintiff was represented by counsel and he was not given a copy of the statement signed by him. In that decision the principle set forth in Urbma was affirmed.

In the case at bar, the majority overrules Urbina and holds the statement of a witness may be discovered despite the absence of special circumstances. I can see no reason to change the existing rule.

It is perfectly obvious the testimony of the mother will be available to the infant plaintiff and it is not claimed the statement was obtained by fraud, deception or unfair means or that its content is not in accord with the information furnished by her. The statement in plaintiffs ’ brief that the mother was the only eyewitness finds no support in the record. The affidavit of plaintiffs’ attorney, the only affidavit in support of the application, states: At the time of the aforesaid occurrence, Agnes Beyer, the mother of the infant plaintiff, was also on the defendants ’ premises. ’ ’ It does not state whether or not other persons were present.

If a statement is discoverable simply because it is made by the mother of the infant party plaintiff, then the statement of any unrelated witness, whose testimony may not be as available to the moving party as is that of the mother of this plaintiff, is subject to discovery. The holding of the majority goes much further than is proposed in the First Preliminary Report of the Advisory Committee on Practice" and Procedure (rule 34.1, subd. [d], p. 121) submitted to the Governor and the Legislature of New York State.

McQuigan v. Delaware, Lackawanna & Western R. R. Co. (129 N. Y. 50, 55) shows that the power of the courts to require a discovery such as here involved is purely statutory. In People ex rel. Lemon v. Supreme Court (245 N. Y. 24) the court reiterated the court’s power to require a discovery is grounded solely on statute. The court there held (p. 29): Documents to be subject to inspection must be evidence themselves ”. Emphasizing the requirement that the documents sought to be discovered must be primary evidence, the court also said (p. 33): *430‘ ‘ She does not ask that she inspect any confession made in her name and admissible against her. * * * She asks that she examine the incriminating statements of a conspirator whose confessions will not be evidence except against himself.” The limited statutory power of the courts in respect of discovery was also recognized by this court in Matter of Ehrich v. Root (134 App. Div. 432) and Hallenbeck v. Parr (65 App. Div. 167, 169).

This court has consistently held that the documents sought to be discovered must be evidence. (Totoritus v. Stefan, 6 A D 2d 123, supra; Urbina v. McLain, 4 A D 2d 589, supra; Weistrop v. Necchi Sewing Mach. Sales Corp., 1 A D 2d 822, affg. 2 Misc 2d 312; Naiman v. Niagara Falls Ins. Co., 283 App. Div. 1016; Matter of Ehrich v. Root, supra.)

That the documents discovered are required to be primary evidence is also demonstrated by the weight of authority in this State. (Second Department: Matter of Silver v. Sobel, 7 A D 2d 728; Beasley v. Huntley Estates at Ardsley, 285 App. Div. 887, affg. 25 Misc 2d 43; Faendrick v. Allied Aviation Service Int. Corp., 284 App. Div. 898; People ex rel. Mergenthaler Linotype Co. v. Mills, 273 App. Div. 860; Raleigh v. City of New York, 264 App. Div. 776; Ehrlich v. New York Cent. R. R. Co., 251 App. Div. 721; Falco v. New York, New Haven & Hartford R. R. Co., 161 App. Div. 735. Fourth Department: Haffenberg v. Wendling, 271 App. Div. 1057.)

The order appealed from should be reversed and the motion denied.

Bbeitel, J. P., Rabin, Valente and Bastow, JJ., concur in Per Curiam opinion; McNally, J., dissents and votes to reverse in opinion.

Order, entered on June 15, 1960, ordering the defendants to deliver to the attorneys for the plaintiffs an exact copy, in its entirety, of a written statement of Agnes Beyer, affirmed, with $20 costs and disbursements to the respondents.