
    (69 Hun, 497.)
    HART et al. v. OGDENSBURG & L. C. R. CO. et al.
    (Supreme Court, General Term, Third Department.
    May 9, 1893.)
    Discovery—Production of Books and Papers—Discretion of Court.
    The granting of an order for a discovery, under Code Civil Proc. c. 8, tit. 6, art. 4, allowing a court to compel a party to an action pending therein to produce for the inspection of the other party books or other documents under his control, relating to the merits of the action, or of the defense therein, is within the discretion of the special term, and such discretion should be "liberally exercised, to enable a party to prepare for trial.
    Appeal from special term, St. Lawrence county.
    Action by William T. Hart and others against the Ogdensburg & Lake Champlain Railroad Company and the Central Vermont Railroad Company to restrain defendants from the performance of an agreement of merger and consolidation. From an order granting an inspection of books and papers, defendants appeal.
    Affirmed.
    For former reports, see 20 N. Y. Supp. 918, and 22 N. Y. Supp. 401.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK,. JJ.
    Louis Hasbrouck, (Daniel' Magone and John C. Keeler, of counsel,) for appellants.
    Theodore H. Swift, (William Caleb Loring and Charles O. Tap-pan, of counsel,) for respondent.
   HERRICK, J.

The granting or withholding an order for a discovery under chapter 8, tit. 6, art. 4, Code Civil Proc., is a matter of discretion in this court, at special term, subject, of course, to-review at general term. Finlay v. Chapman, 119 N. Y. 404, 23 N. E. Rep. 740. While the general term has power to review the exercise of its discretion by the special term, it will not reverse ita action unless it pretty clearly appears that upon the merits of the motion the special term has erroneously exercised its discretion. An examination of the printed case in this appeal fails to satisfy me that upon the merits the special term improperly exercised the power vested in it. The discretion vested in the court should be liberally exercised, to enable parties to properly prepare for trial; and it seems to me that the reasoning of Justice Harris in Powers v. Elmendorf, 4 How. Pr. 60, applies to the provisions of the Code as they now exist. He there said:

“I can see no good reason why a party should be permitted to withhold' from the knowledge of his adversary documentary evidence affecting the merits of the controversy, only to surprise him by its production at the trial, unless, for some satisfactory reason to be made apparent to the court, each party ought to be required, when it is desired, to disclose to the other any books, papers, and documents within his power which may contain evidence pertinent to the issue to be tried. If the evidence thus disclosed should be conclusive upon the issue, the parties may be saved the expense of a trial, ■and, if not, they will come to the trial upon equal terms, each prepared, so far as the evidence within his reach will enable him to do so, to maintain his side of the controversy. This I believe to have been the intention of the legislature, and this I regard as the true construction of their enactment on this subject.”

The order appealed from should be affirmed, with $10 costs, and printing and other disbursements of this appeal. All concur. 
      
       Code Civil Proc. c. 8, tit. 6, art. 4, gives power to a court of record other than a justice’s court in a city to compel a party to an action pending therein to produce and discover, or to give to the other party an inspection and copy, or permission to take a copy, of a book, document, or other paper in his possession or under his control, relating to the merits of the action, or of the defense therein.
     