
    Josephine Peck, Plaintiff, v. Samuel W. Peck, Defendant.
    (Supreme Court, New York Special Term1,
    December, 1907.)
    Discovery and inspection — Inspection of books, papers and premises — Right to remedy — To frame pleadings^
    Where the materiality of a deed, which plaintiff seeks to have set aside for fraud, distinctly appears, plaintiff’s motion for a discovery and inspection thereof, so that he may be able to show in his complaint whether or not said deed bears his signature or whether it was used under the circumstances charged in Ms moving affidavit, will'be granted.
    Motion for a stay pending appeal.
    Leidy & Goodstein (Herman B. Goodstein, of counsel), for motion.
    Wolf, Kohn & Ullman (Sol. Kohn, of counsel), opposed.
   Giegerich, J.

Hpon the undisputed facts shown -the petitioner is clearly entitled to a discovery and inspection of the deed in suit. It is objected by the defendant that since a summons only has been served the plaintiff is not entitled thereto, under the decision in Rhoades v. Schwartz, 52 App. Div. 379. In that case it was held that a discovery and inspection could not be had, because it was not made to appear that the defendant intended to rely upon the deed or document sought to be inspected for its defense, and that unless it were so made to appear it could not be said that it was necessary for the petitioner to have an inspection of that document. In the present case the materiality of the deed distinctly appears from the motion papers, which deed the plaintiff seeks to have set aside for fraud. It is the only document involved in the litigation, and, therefore, the plaintiff should have such discovery and inspection so that she may be able to show in her complaint whether or not that paper bears her signature or whether it was used under the circumstances charged in her moving affidavit. The motion is, therefore, granted, with ten dollars costs. A referee will be named on the settlement of the order to direct and superintend the discovery and inspection.

Motion granted, with ten dollars costs.  