
    BENJAMIN WHITWORTH, et al., Plaintiffs and Respondents, v. THE ERIE RAILROAD COMPANY, Defendant and Appellant.
    On a motion made in an action to discover books, papers and documents, where the moving papers establish the existence of the evidence, its materiality, the necessity of a discovery, and the good faith of the application, and these facts were uncontradicted : it was not necessary that the papers should also show, in addition to these facts, that the evidence sought to be discovered is uindispensably necessary, ” and that the party seeking the discovery has not the means of establishing the same facts by other available proof.
    The cases that seemingly hold such a doctrine are cases where the propriety and necessity of a discovery were drawn in question by opposing affidavits.
    A provision added to the order at the time of its settlement, to the effect “that in default of compliance, the defendant’s answer should be stricken out, ” is in exact conformity to the rule on the subject.
    Before Freedmar and Sedgwick, JJ.
    
      Decided June 1, 1874.
    Appeal from an order made at special term directing a discovery by the defendant.
    The plaintiffs shipped at Memphis one thousand and ninety bales of cotton, at various dates between February 5 and March 5, 1872, by the Memphis and Louisville Railroad, to be delivered on board steamers at Jersey City. The various railroad lines over which the cotton came to Jersey City, including the Erie Railway Company, were united together by an agreement to receive and forward freight, one from the other, and through bills of lading were given to the plaintiffs.
    Five hundred bales of the cotton were burned while-the same was -in the custody of the defendant at Jersey City, and the action is brought to charge the defendant with this loss.
    The defendant’s answer admits the receipt by it at various times from connecting lines of railrpads of in all nine hundred and ninety bales of cotton, consigned to Liverpool; alleges that such cotton was received under a special contract, by which the defendant was-exempted from liability “ for loss or damage on any article, or - property whatever by fire or other casualty while in transit, or while in deposit in places of transhipment or at depots or landings at all points of delivery.”
    The answer further alleges, “that in the usual course of business as the cotton arrived at the depot at Jersey City, due notice of such arrival was given, and that the defendant delivered the cotton from time to time as directed, until the happening of the fire hereinafter referred to, at which time the cotton had all been delivered except three hundred and ninety-one bales.
    That while the defendant was so engaged in the delivery of the cotton, and in the due exercise of care and diligence in the premises, on March 21, 1873, without any fault or neglect on the part of the defendant, the depot of the defendant at Jersey City, where the cotton was stored pending its delivery, was consumed by fire, and the cotton undelivered, also then and there consumed by said fire.
    Plaintiffs’ application for a discovery was based upon the pleadings and a petition, and the motion having been granted, the following order was entered:
    It is ordered that the defendant discover and produce, within twenty days after the service of this order on it or its attorneys, all freight-books, freight-accounts, freight-lists, way-bills, bills of lading and receipts, and all other books, papers and documents in its possession or under its control, however described, containg any entries in writing in any way or manner-relating to the receipt by it of the cotton mentioned in the petition of the plaintiffs herein referred to in said order of December 22, 1873, or any of it, and to the shipments or other disposition made by it of said cotton so received by it, or any of it, and that such discovery and production be made by delivering to the plaintiffs’ attorneys sworn copies of so much of all said freight-books, freight-accounts, freight-list, waybills, bills of lading and receipts, and other books, papers and documents as in any manner relates to said cotton and its receipt and disposition by said defendant, distinguishing in such production and discovery the particular books, papers and documents from or of which such copies may be taken, and in default of such discovery and production it is further ordered that the answer of the defendant be stricken out.
    From this order the defendant appealed.
    
      Jos. Larocque, for appellant.
    
      James C. Carter, for respondents.
   By the Court.—Freedman, J.

The sworn petition of the plaintiffs, after giving an outline of the facts constituting the cause of action and of the nature of the defense, and setting forth the different shipments of the cotton, the date of, and the number of bales composing, each shipment, and the marks of the respective lots, showed that before commencing said action the plaintiffs, requested said defendant to furnish them with the numbers and marks of the said cotton received by it, the dates of such receipt of each lot, the numbers and marks of the said cotton transported to said port of Hew York, the dates of the arrival of each lot at said port, the number and marks of the said cotton by it delivered; and the dates and ships to which each lot was delivered; and that said defendant has neglected to comply with such request; and that the-said railway company has books, papers and documents in its possession or under its control containing entries or writing relating to said cotton so received by it, and showing the numbers and marks of the several lots of cotton so shipped, and the days on which each of said lots came into its possession or was delivered to it, and the place or places where the same were so delivered, and of, the time of the arrival of each of said, lots or parts of lots at its said depot or station, and by what routes of travel the same came; and showing also the delivery of the several lots or parts of lots to the several ships or vessels or steamship companies, and the time or times of such deliveries, and the number of said bales delivered, and that such books, papers and documents are generally described and known as freight-books or accounts, freight-lists, waybills, bills of lading and receipts.

These allegations were not denied by the defendant, nor were any papers read in opposition to the application. Upon this uncontroverted state of facts and further allegations showing the materiality of the discovery and plaintiffs’ inability to proceed to trial without it, and that the said books, papers and documents are not in the possession or under the control of the plaintiffs, the court below was fully authorized to grant the order.

To recover, the plaintiffs must establish negligence on the part of the defendant; to establish that it will be necessary for them to introduce evidence to the effect that the defendant held the cotton in its custody, at Jersey City, for more than a reasonable time ; and to determine that it must be shown, among other things, when each lot arrived in Jersey City, and when it was delivered, so far as it has been delivered, on board of the steamer. Upon the trial it will also become material for more than one reason, to identify the particular bales destroyed. Upon these points the plaintiffs showed that the defendant has, in writing, what is presumptively the best attainable evidence, and as the defendant stands in relation to the plaintiffs, no valid reason can be perceived why the latter should not have a discovery.

The purpose for which the plaintiffs seek a discovery is to establish their own case, and as the facts and circumstances disclosed and set forth by them sufficiently demonstrated the existence of the evidence, its materiality, the necessity for a discovery, and the good faith of the application, it was not necessary that the petition, in addition to such facts, should, in express language, have averred that the evidence thus sought to be discovered is “indispensably necessary,” and that the plaintiffs have not the means of establishing the same facts by other available proof. The cases cited by the learned counsel for the defendant, in which such a doctrine was laid down, were cases in which the propriety and necessity of a discovery were drawn in question by opposing affidavits.

The provision added at the time of the settlement of the order that in default of compliance the defendant’s answer should be stricken out, was in exact conformity to the rule.

The order should be affirmed, with costs.

Sedgwick, J., concurred.  