
    Perrow v. Lindsay.
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    1. Practice in Civil Cases—Inspection op Documents.
    Code Civil Proc. N. Y. § 806, provides that an order for discovery may be vacated upon satisfactory proof by affidavit that the party required to make discovery has not possession or control of the document. Held, that an affidavit by defendant that he has not now the custody and control of the document is insufficient where the petition shows that it was in his possession.
    
      3. Same.
    Though the plaintiff may recollect the general tenor of the instrument, he cannot be required to declare upon it without having an opportunity to see it, where the instrument is as much his property as that of the defendant.
    Appeal from special term, Hew York county.
    Action by James Perrow against David A. Lindsay. Prom an order directing defendant to allow the plaintiff to inspect an agreement between the parties to the action, defendant appeals. Code Civil Proc. § 806, provides that an order for discovery may be vacated upon satisfactory proof by affidavit “ that the party required to make, discover, or permit the inspection has not the possession or control of the book, document, or other paper directed to be produced or inspected.”
    Argued before Van Brunt, P. J., and Bartlett, J.
    
      Franklin Bien, for appellant. A, JB. Byett, for respondent.
   Van Brunt, P. J.

The petition of the plaintiff shows that this action was commenced by the service of a summons, and that the defendant has appeared; that the complaint in the action has not been prepared, and that in. order to do so the plaintiff should have an inspection and copy of a written agreement entered into between the parties to this action, to recover damages, for the breach of which this action is brought. It further alleges that the agreement was prepared by defendant and executed by him and the plaintiff at the plaintiff’s place of business; that plaintiff asked defendant for a copy of the agreement to be similarly executed, and defendant answered that he intended to copy the agreement into a book, and that when it was so copied he would on the following Monday give the plaintiff a copy thereof; that defendant never did deliver said agreement or a copy of it; that prior to the commencement of the action petitioner sent to the defendant for a copy of the agreement, and the defendant has never sent any answer thereto; that the petitioner never had a copy of the agreement, and that an inspection and copy thereof are necessary to enable him to prepare his complaint; that the petitioner cannot recollect all the language of the agreement; and he annexes what he believes to be the substance thereof, and alleges that he may be mistaken in the language as given in the copy annexed; that, after the agreement was executed, the plaintiff was ready and willing to perform the same, and all the conditions thereof, but the defendant repudiated said agreement, and refused to perform the same in whole or in part; and that this action is brought to recover four months’ salary at the rate of $250 a month, which the petitioner was entitled to receive under said agreement. The answer to the petitioner was that the agreement was not in defendant’s custody and control, and that it was not in his custody or control at the time of the commencement of this action. An order was made for a discovery of the agreement, and from such order this appeal is taken.

The ground of appeal is that the defendant has denied having the agreement in his custody or control; and, further,' that no inspection is necessary, because the plaintiff can declare sufficiently well without having an inspection of the agreement. It is plain that if a simple answer to an application of this description, that the defendant has not the paper set forth in his custody or control, is to prevail in every case, the provisions for a discovery in the Code may as well be repealed, because they would not be of the slightest use under any circumstances. The petition in this case shows the agreement in the possession of the defendant, and a promise on his part to give the plaintiff a copy, which has not been kepte; and if, in anticipation of an action upon the agreement, the defendant can put it out of his possession, and resist a claim for discovery, then it is time that there was an amendment of the provisions of the Code. We think, however, that is not at all necessary,• as the defendant must satisfy the court that the paper is not in his possession, nor under bis control; and where a paper is last shown in the possession of the defendant he has to show what he has done with it, what has become of it, or that it has gotten out of his possession, and is no longer under his control. The claim that the plaintiff can declare without an inspection of the instrument is not well taken. The plaintiff may recollect the general tenor of the instrument, but its language or its terms may vary, and he is not required to declare upon a written instrument, which is as much his property as it is the property of the defendant, without having an opportunity to see the precise terms and wording of the instrument declared upon. The order should be affirmed, with $10 costs and disbursements.

Bartlett, J., concurs.  