I dissent from the view of the majority that, under CPLR, there may be no discovery and inspection of documents not in the possession or control of parties. CPLR 3101 broadly states that “ There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by * * * (4) any person where the court on motion determines that there are adequate special circumstances.” The “ disclosure ” may be obtained by the use of the “ disclosure devices ’ ’ provided for in CPLR 3102, including ‘ ‘ discovery and inspection of documents or property ’ ’. These provisions for disclosure are to be liberally construed and applied. In fact, it is pointed out by reliable commentators that “ ['S]ince the limitation on discovery of records of non-parties may be avoided by examining records under CPLR 3111 at an examination, a more liberal approach is warranted wherever an examination of the witness would have been allowed.” (3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3120.08.)
In my opinion, nothing specifically in CPLR warrants the continuance of the narrow rule under the Civil Practice Act which limited discovery and inspection to documents and things in the possession, custody or control of a party. CPLR 3120 does not so require in that it applies solely where discovery and inspection is sought merely by the service of a notice. It is true that there is no specific CPLR provision for discovery and inspection by service of a notice where, as here, the records are in the possession of a nonparty. This, however, would merely indicate that in such eases it was intended that the disclosure must be obtained by means of an order of the court. (See CPLR 3104.)
In light of the foregoing and for the reasons more fully developed in Williams v. Sterling Estates (41 Misc 2d 692, 693), and in the “ Supplementary Practice Commentary” by Prof. David D. Siegel (McKinney’s Cons. Laws of N. Y., Book 7B, Supp., pp. 30-31), I would hold that the court, in an action, may direct discovery of a document or property in the possession and sole control of a nonparty.
Here, the particular order directing the New York Board of Fire Underwriters to allow the defendant to inspect their records was rendered without notice to it. Concededly, however, *243as the majority opinion points out, it does appear that there are “ adequate special circumstances ” justifying disclosure by this nonparty. Bather than remand for service of notice of motion upon the board, we may condition the “ disclosure device ’ ’ upon such terms as will afford proper protection to the board. (See CPLR 3103, subd. [a].) Under these circumstances, I would modify the order to direct that the records be produced on subpoena before the court at Special Term, Part II, New York County, and the said board may there interpose such objections, if any, as it may deem advisable. This would accord with the practice if the records were in fact subpoenaed for use in connection with an examination of a party before trial or upon a trial.
Bkeitel, J. P., Valente, McNally and Steuer, JJ., concur in Per Curiam opinion; Eager, J., dissents in part, in opinion.
Order, entered on October 5, 1964, reversed, on the law, without costs and without disbursements to either party, and the motion denied, with leave in the exercise of discretion to defendant-respondent to apply for the taking of the board’s deposition under CPLR 3101 (subd. [a], par. [4]) and 3107 to 3111.