
    James R. Watts, Resp’t, v. Caleb B. Knevals, as Trustee, etc., et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed October 25, 1888.)
    
    Pbactice—Obdeb fob discoveby of wbitten instbtjment—When coijbt CAN VACATE—CODE OlV. PEO., § 806.
    Under Code of Civil Procedure, section 806, upon its being shown by affidavit that a party who has been directed to produce a written instrument has not such an instrument in his possession, or under his control, and does not know where it is, the order for discovery should be vacated.
    Appeal by defendants from an order vacating an order requiring the plaintiff to deposit with the clerk the agreement upon which the cause of the action is based. On this •motion the plaintiff’s affidavit was used, in which he swore that he had not seen the instrument asked for since about 1885; that he had not had the same in his possession, or under his control, and that it was not then in his possession, or under his control, and that at the time of making the affidavit he did not have it in his possession, or under his control, and did not know where it was.
    
      James W.Perry, for app’lts; Goodrich,Deady & Goodrich, for resp’t.
   Per Curiam.

The application for the discovery was professed to be made for the purpose of enabling the defendant to frame an answer. The affidavit of the principal defendant shows that the answer can be made without a discovery, for he avers that the agreement, or alleged agreement, asked to be discovered was never made by him. Whether or not there should be relief after issue joined is-not before the court.

Further, the court below was right in setting aside the order upon its finding from the affidavits that the plaintiff had not the possession or control of the instrument-in question. Code Civ. Pro., § 806. The proof on this subject was of such-a nature that conclusion of the court below, as-to the fact, cannot be reversed.

The order should be affirmed, with ten dollars costs and disbursements to be taxed.  