Rice v. Ehle
New York Supreme Court
THE plaintiff sued the defendants for negligence in making the milk furnished by him to them, as proprietors of a cheese factory, in Herkimer county, into cheese. The plaintiff applied to the Hon. A. B. James, a justice of this court, for an order requiring the defendants to make discovery of certain books and papers belonging to them, or under their control.
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THE plaintiff sued the defendants for negligence in making the milk furnished by him to them, as proprietors of a cheese factory, in Herkimer county, into cheese. The plaintiff applied to the Hon. A. B. James, a justice of this court, for an order requiring the defendants to make discovery of certain books and papers belonging to them, or under their control. After hearing the parties, he made an order, pursuant to the prayer of the petition presented to him, requiring the defendants to make "such discovery, and that they give notice to the plaintiff’s attorney of the time of making such…
1Opinion of the Court
By the Oourt, Mtjllih, P. J.
It is not claimed but that the order of James, J., was a proper one, so far as it related to a discovery of books, &c'. But it is said that the provision prescribing the consequences of not obeying the order is unauthorized and void.
The proceedings to obtain a discovery of books and papers are prescribed by 3 R. S. pp. 293, 294, §§ 60-64, 66, 5th ed. There is nothing in those sections that authorizes the insertion in the order for discovery, of the consequences of not obeying it. Section 65 provides that the court may nonsuit the party disobeying the order, strike…
2Cited by2 opinions
- Curtis v. GreeneNew York Supreme Court · 1882
- Erisman v. PidcockNew York Supreme Court · 1881