
    Chester N. and Lawrence Case, Plaintiffs and Appellants, v. William Banta, Defendant and Respondent.
    1. Under section 388 of the Code of Procedure, which enlarges the remedy for obtaining discovery and inspection of books and papers pending suit, if a party establishes, to the satisfaction of the Court or Justice, that any book, paper or document is in the possession or under the control of the adverse party, containing competent evidence relating to the merits of the action or defense, its production for inspection may be compelled.
    2. Thus, where, in an action for breach of warranty on a sale of goods, the plaintiffs, made affidavit that there was a written contract which they had not known, or had forgotten at the commencement of the action, and that it was in the possession of defendant, who refused to exhibit it or give a copy, and that it was material to them in the action; Held, that they were entitled to an order requiring defendant to give them an inspection and copy, or permission to take a copy.
    (Before Bosworth, Ch. J., Moncrief, Robertson, Barbour and Monell, J. J.)
    Heard, April 19, 1862;
    decided, April 26, 1862.
    
      Appeal from an order made at Special Term, denying a motion for an order that the defendant permit the plaintiff to take a copy of a contract or agreement made between the parties in this action, and referred to in the affidavits read on the motion.
    ■ The action was to recover damages for the breach of a warranty made by the defendant to the plaintiffs, on the sale of about fifty-four dozen hats. The hats were purchased by sample, and it was alleged that the bulk did not correspond with the sample shown, the defendant having promised that they should. The plaintiff stated in his affidavit, “that he has recently been informed and believes that there was a written contract or memorandum of agreement for the sale and delivery of the said hats,” which was not known to him at the commencement of the action, or which -he had forgotten. It further appeared that the agreement was in possession of the defendant, who had refused to exhibit it to the plaintiffs, or give them a copy, and was material for the plaintiffs in the action.
    
      L. B. Woodruff, for plaintiffs, appellants.
    I. The agreement is the sole original of an instrument upon which the rights of both the parties depend, and was made for the very purpose of securing the rights of each. The casual fact that the defendant is (in the confidence which was reposed in him) the custodian of the instrument, does not affect the plaintiffs’ right. So far from impairing their title to see and use the instrument, this circumstance makes the conduct of the defendant in withholding the instrument, more unjust and inequitable, and calls more strongly for the interference of the Oourt.
    2d. The principles of the Oourt of Chancery regulating discovery made this distinction :—where books, papers or documents in the possession of an adverse party were the sole property of such party, discovery could only be had by bill of discovery, or by a cross-bill filed for that purpose, and in that case all the conditions requisite to sustain such a bill must be shown; but where both parties have an equal right to the examination of the papers or documents, the Court, on mere motion, and on an application in any stage of the suit, would prder the adverse party to deposit the same with an officer of the Court, and permit copies to be taken. (Kelly v. Eckford, 5 Paige, 548, and cases there cited.)
    3d. In a Court of law it is a matter of course to compel one party who has the possession of a document which belongs equally to both, to produce the same for the inspection of his adversary of the purpose of the suit. (Same Case; Goater v. Nunnely, 2 Strange, 1130; Reid v. Coleman, 2 C. & M., 456; 4 Tyr., 272; Blakey v. Porter, 1 Taunt., 386; Cooke v. Tanswell, 1 Moore, 465; Gigner v. Bayly, 5 J. B. Moore, 71; Bateman v. Phillips, 4 Taunt., 157; Travis v. Collins, 2 C. & J., 625; Morrow v. Saunders, 1 Brod. & Bing., 318; 3 J. B. Moore, 671; Wallis v. Murray, 4 Cow., 399, and cases cited; Ruberry v. Binns, 5 Bosw.,685; Brevoort v. Warner, 8 How. Pr., 321, 326.)
    II. If the foregoing be not entirely conclusive of the right of the plaintiffs to the inspection they seek, then they are entitled to that inspection upon other grounds regulating discovery, even of papers which belong to the defendant himself. “Enough must be stated to justify a presumption that the documents exist, are in the possession or control of the party, and that they will tend to establish some claim or defense of the party asking the discovery, and that they are not in his possession or control. (Hoyt v. Am. Exch. Bank, 1 Duer, 655; Exchange Bank v. Monteath, 4 How. Pr., 280.)
    The Court has power to compel a defendant to discover documents relating to the merits, which are necessary to the plaintiff to enable him to prepare for trial. (Gould v. McCarty, 1 Kern., 575.) Powers v. Elmendorf, (2 Code R., 421,) goes much further even than is sought in this case.
    The moving papers should be such as to enable the Court to see that the documents relate to the merits, and that they will be presumptively material in preparing for trial, and if that appear, the oath of the party to that effect is not even necessary. (Hoyt v. Am. Exch. Bank, 1 Duer, 656.) ,
    It is no answer to say that the party can be compelled to produce the paper on the trial by subpoena duces tecum. That furnishes no aid in preparing for trial, and besides, the plaintiffs are entitled to secure an inspection of the document or a copy thereof, without the necessity of calling their adversary. Where a party is seeking to make a prying examination into the books and papers of his adversary for the purpose of gathering evidence, there is propriety in holding, that, as he can examine his adversary on the trial, that will furnish him all the aid necessary; and it is just, because the adversary can himself supply all proper explanations. But when the object is simply to obtain an inspection or copy of a specific agreement, executed by both parties, no explanation is necessary. It in no degree partakes of the character of a fishing examination, and it should be allowed to the applicant, in order to aid Mm in the preparation of his cause.
    
      S. F. Cowdrey, for defendant, respondent.
    I. The contract, of which discovery is sought, if there is any, can only apply to the defense in the suit. The plaintiffs sue for damages for breach of warranty on sale of hats, and not on the alleged contract. The complaint ignores the existence of any written contract. The defendant alone can avail himself of it.
    II. neither the Revised Statutes nor the Code enable either party to á suit to compel his opponent to discover papers or books, unless such papers as will aid the “party applying for the discovery.” The words in each are. “ relating to the merits of the suit or the defense therein.” The uniform and unvarying decisions, under the Revised Statutes, are that the discovery must be intended to aid the party applying. The Code has made no alteration in this respect; it has only made a verbal alteration of the consequences of a refusal to comply with the order of the Court. (Compare provisions of 2 R. S. and Code.)
    The case of Powers v. Elmendorf, (4 How. Pr., 60,) admits the principle applicable by the law before the Code, but decides the Code has established a different rule, because of the concluding sentence of the Code. The same reasoning will apply to the Revised Statutes. Per Woodruff, in McAllister v. Pond, (15 How. Pr., 299,) the discovery must' be material to applicant’s case.
    III. Assuming that the plaintiffs can require the production of the alleged contract, the affidavits do not make out a case entitling them to discovery.
   By the Court—Monell, J.

Without examining the questions discussed on the argument of this appeal, as to the power of the Court, independently of the Code, to grant the relief asked for by the plaintiffs, we are so well satisfied (in which the Justice who made the order appealed from now fully concurs) that the plaintiffs have brought themselves within the provisions of section 388, of the Code, that we entertain no doubt the order appealed from should be reversed. That section authorizes the Court before which the action is pending, or a Justice thereof, in their discretion, on due notice, to order a party to give to the other an inspection and copy, or permission to take a copy of any books, papers or documents in his possession or under his control, containing evidence relating to the merits of the action or the defense therein.

If it is established to the satisfaction of the Court or Justice, that any book, paper or document is in the possession or under the control of the adverse party, containing evidence relating to the merits of the action or defense, it seems to me free from doubt, if it is otherwise competent evidence, that its production for inspection by the opposite party, may be compelled. The power conferred by the Code is in addition, and auxiliary to the provisions of the Revised Statutes, (Gould v. McCarty, 1 Kern., 575,) and was intended, I think, both to simplify the proceedings and enlarge the remedy.

The agreement, the production of which was sought by this motion, may be the very foundation of the action, and the plaintiffs having proceeded upon the supposition that the contract was by parol, ought not, in justice, to be met at the trial by an objection, fatal, perhaps, to their suit. Besides, the agreement was the agreement of both parties, and, upon well established principles, it belongs as much to the one party as the other.

The order appealed from should be reversed; ten dollars costs of the plaintiffs’ on the motion at Special Term, to abide the event of suit.

An order is to be entered requiring the defendant or his attorney, to give to the plaintiffs or to their attorney, within ten days from the entry of the order and service of a copy thereof, an inspection and copy, or permission to take a copy of the agreement .or memoranda .of agreement, for the sale and delivery of the hats mentioned in the complaint in this action. The order to be settled on two days notice to the defendant’s attorney.  