
    IROQUOIS HOTEL & APARTMENT CO. v. IROQUOIS REALTY CO.
    (Supreme Court, Appellate Division, First Department.
    June 19, 1908.)
    Discovery—Statutes—Inspection op Books—Right to Inspect;
    Code Civ. Proc. § 803, permits an inspection of the books or papers of an adverse party relating to the merits of the action or of the defense therein. In an action for damages for wrongful eviction from premises used by plaintiff as a hotel, defendant denied the eviction or that damage resulted, and moved for an order for an inspection of books kept by plaintiff showing resulting profit or loss of his business, which was denied. Said, that the statute gives the right of inspection of books where they affect the merits of a defense, and the defense need not necessarily be affirmative, and the motion should have been granted.
    Appeal from Special Term, New York County.
    Action by the Iroquois Hotel & Apartment Company against the Iroquois Realty Company. From an order denying a motion for a discovery of books of account, defendant appeals.
    Reversed, and motion granted.
    Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
    Roger S. Baldwin, for appellant.
    John J. Cunneen, for respondent.
   PER CURIAM.

The action is for damages for an alleged wrongful eviction of the plaintiff from premises used as a hotel. In conducting its business the plaintiff kept books showing resulting profit or loss, and these books defendant asked to be permitted to inspect. The defendant denies the wrongful eviction, or that any damage resulted.

The books of the plaintiff will show whether the hotel business was profitable or not, and, if profitable,' to what extent plaintiff suffered damage from its eviction. Damages being claimed and denied, their amount is a material issue in the case. Section 803 of the Code of Civil Procedure permits an inspection of the books or papers of an adverse party “relating to the merits of the action, or of the defense therein.” A right of inspection of books and papers is thus expressly given by the Code to a defendant where they affect the merits of the defense, and this defense need not necessarily be an affirmative one. Such inspection may greatly facilitate the trial and relieve the court from much detail, as well as apprise the parties so they meet the particular dispute involved, and should be granted where a proper case is disclosed. Hart v. Ogdensburg & L. C. R. R. Co., 69 Hun, 497, 23 N. Y. Supp. 713; Powers v. Elmendorfs, 4 How. Prac. 60; Rhoades v. Schwartz, 52 App. Div. 379, 65 N. Y. Supp. 111; Edmonds v. Attucks, 117 App. Div. 486, 102 N. Y. Supp. 636. We think the defendant showed facts entitling it to the inspection asked for.

The order should be reversed, with-$10 costs and disbursements, ■and the motion granted, without costs.  