
    CUTTER v. POOL.
    
      N. Y. Common Pleas; Chambers,
    
    November, 1877.
    Discovery and Inspection.—Section 388 of Code oe Procedure.. —Sections 803-808 of Code of Civil Procedure.
    Section 388, of the Code of Procedure is repealed by L. 1877, p. 469, c. 417.
    
      Discovery aud inspection of books, &c., must now be had under sections 803 to 808 of the Code of Civil Procedure, and application therefor is to be made exparte upon a verified petition.
    Where the moving papers, in an application by a plaintiff for discovery, &c., of books, did not show the necessity thereof to enable the applicant to frame his complaint, but admitted a mistake in an account settled two years before, and averred that the applicant “ verily believes that defendant’s check-book ” would show such mistake, and asked inspection thereof; and the defendant pleaded payment and an account stated;—Held, that the new Code did not authorize such application to enable the party to prepare for trial, but that his remedy was by subpoma duces teaum.
    
    Motion by plaintiff for inspection of books. •
    James M. Cutter and others brought this action ■against Hiram Pool, to recover $1,000, alleged to have been paid by plaintiffs to defendant, on a running account, but overlooked and not credited to them on a settlement made more than two years before the action.
    After the cause was at issue, the plaintiffs moved for an inspection and copy of defendant’s books of account, under section 388 of the Code of Procedure. The affidavit on which the motion was made, stated that defendant’s check-book for the months of July and August, 1874, would show a deposit by him of said sum of $1,000, and that his cash and account books for the same period would show the receipt by him of the said amount from the plaintiffs ; that these books were in defendant’s possession ; and that an inspection of them was necessary to enable them to safely proceed to trial. Other material facts sufficiently appear in the opinion.
    
      Hatch & Van Allen, for the motion.
    
      Childs & Hull, opposed.
   Larremore, J.

The plaintiff applies on motion, in pursuance of section 388 of the Code of Procedure, for an inspection and. copy of defendant’s books of account. This section, which enlarges the remedy for obtaining discovery of evidence, has been decided to be auxiliary to and not a substitute for the provisions, of the revised statutes.

In the repealing act passed June 5,1877, section 388-of the "old Code is repealed, the same not being mentioned in the sections therein excepted from repeal.

The remedy sought must now be had under sections-803 to 808 of the Code of Civil Procedure, which are a. virtual re-enactment of the provisions of the revised statutes upon this subject. The application is now ex parte upon a verified petition, and not upon notice of a motion.

This objection, however, was not raised upon the-argument, and as both parties have been heard and have submitted the right to an inspection upon the-the merits, no injustice will arise in deciding the question upon the papers presented.

Under the general rules of practice prescribed in such cáse, the plaintiff may compel discovery and inspection of books and papers which may be necessary to enable him to frame his complaint or to answer any pleading of the defendant (Rules Supreme Court). No-such necessity is shown in the moving papers ; but the plaintiff, who admits that the claim in suit grows out of a mistake made in an account settled some two-years ago, “verily believes that defendant’s checkbook” will show such mistake, and asks inspection thereof. The defendant pleads payment and an account stated. I do not think that the new Codo authorizes an application of this kind to enable a party to prepare for trial; but, if it does, the defense of payment is a fact to be established by the defendant, and not by the party applying for the inspection. This, in my judgment, is the true test of the application. Plaintiff has his remedy by a subpoena duces tecum, and this motion should be denied. .  