
    Jacob I. Christman and Others, as Executors, etc., of Anthony Christman, Deceased, Appellants, v. Philip Keck, Respondent.
    Third Department,
    May 4, 1910.
    Discovery—inspection of books and . papers—application during trial..
    Where the trial of an action on a note in which defendant counterclaims for the ■ value of legal services is in progress before a referee, an inspection by .defendant of 'certain statements of services rendered by him to plaintiff’s- testator in the latter’s lifetime should not be granted for the sole purpose of. refreshing his recollection. The papers which plaintiff offered- to produce on the trial
    ' 'may he used for -that purpose after they have been received in evidence.
    Sewell-and Houghton, JJ., dissented.
    
      Appeal by the plaintiffs, Jaeob I. Christman and others, as executors, etc., from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 30th day of December, 1909, directing the plaintiffs to allow the defendant an inspection of certain papers in their possession.
    
      Alfred Dudley Dennison, for the appellants.
    
      Andrew J. Nellis and M. H. Nellis, for the respondent.
   Cochrane, J.:

The trial of this action pending before a referee was halted to permit the defendant to procure an inspection of certain written statements delivered by him to the plaintiffs’ testator. The action is on a promissory note given by defendant. He counterclaims for legal services rendered by him as an attorney and counselor at law extending through a period of many years, and the statements in question contain matters relating to the business transactions between him and his former client. Clearly those papers are evidence in behalf of either party to this action. The plaintiffs so regarded them and offered to produce them before the referee on the trial. We think the order for the inspection was improvidently granted and without sufficient reasons appearing therefor. The only reasons given by defendant in the moving papers are as follows: “Your petitioner does not recall the details of the services which he rendered to plaintiffs’ testator during all the years since 1883, and is confident that these statements so rendered by him in confidence to said testator would refresh his recollection in many particulars so that he might testify to the services thus rendered and to many details concerning which he would be competent to testify because they would not concern any personal transaction had between your petitioner and said testator, and an inspection and copy of such statement and statements is necessary to enable your petitioner to prepare for the trial and defense ■ of this action. That without an inspection of the said statement and of each and every statement which your petitioner has rendered to said testator in his lifetime your petitioner will be unable to maintain his defense and counterclaim as efficiently herein as if he were permitted to refresh his •recollection from the said statements and papers so rendered and delivered -by him to said testator which are now under the control and in' the possession .'of these plaintiffs.” Manifestly whatever ■ benefit as thus stated by defendant lie could derive from an inspection of the documents in question would he available to him as. well after as before such documents'are admitted in evidence. The declared purpose of the inspection is solely. to refresh the defendant’s recollection. The papers can accomplish that result with undiminished efficiency .after they become evidence. As previously pointed out, the trial-of this action has already been commenced before a referee.' The- reasons which usually prompt a court to direct a discovery or inspection of papers before trial do not here apply. No time or expense is to be. saved, and there is ho question of surprise1 involved. The defendant’s rights can'he -fully safeguarded by the referee.

' The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars, costs.

All concurred, except Sewell and Houghton, JJ., dissenting.

Order reversed, with ten dollars costs and disbursements, and •motion denied, with ten dollars costs.  