
    Elizabeth Reich, Plaintiff, v. E. W. Bliss Building, Inc., Defendant.
    (Supreme Court, New York Special Term,
    July, 1911.)
    Discovery and inspection — Inspection of books, papers, and premises —. Eight to remedy — When allowed in general.
    In an action for damages sustained- by the loss of .certain wine claimed to be of rare vintage and high value, the defendant, claiming that the wine was unknown to the local trade- and that he had been unable to learn its value and cost, is entitled, under section 803 of the Code of Civil Procedure, to an inspection of plaintiff’s books.
    Motion by the defendant for a discovery and inspection of the plaintiff’s books.
    Kellogg & Emery (Chester W. Outhell, of counsel), in support of motion.
    Charles Strauss, in opposition.
   Lehman, J.

The plaintiff has brought an action for damages sustained by the loss of forty cases of wine. She has served upon the defendant an itemized bill of particulars, claiming that the wines were worth $4,794. According to - this bill of particulars, this wine was of rare vintage and exceedingly high value. The defendant claims that no such wines are known to the.wine trade of the city of Dew York and that he has been unable to le'arn their value and cost and asks an inspection and discovery of the plaintiff’s books. The denial of the amount of damages raises an issue. A right of inspection of books and papers is expressly given by section 803 of the Code of Civil Procedure to a defendant where it affects the merits of the defense. Such defense need not necessarily be an affirmative one; and a' defendant is, in a proper case, permitted -an inspection of the plaintiff’s books upon the defense that the amount of damages claimed h-aa not been sustained. Iroquois Hotel & Apartment Co. v. Iroquois Realty Co., 126 App. Div. 814. In this case, the rarity and peculiarly high value of the wines are elements to' be considered upon the merits of the application. The plaintiff, however, claims that she has no such books and papers. I cannot go so far as to say that the mere fact that the plaintiff gives the items of her claim for damages with some particularity raises a serious suspicion that her statement is untrue; but it does raise some suspicion that, in making up the bill of particulars, resort was had to some books and documents. If such books or documents, even if not in plaintiff’s possession, are in her control, though in the possession of her husband, they should be produced. An order for a discovery cannot do the plaintiff any substantial injury, if no books are in her control; for in that event she can free herself of the burden of the order by making an affidavit to that effect. I also find no laches in the application. Until the plaintiff pressed her complaint, it would have been useless for the defendant to prepare its defense. The order should provide that the plaintiff produce the books, either at her attorney’s office or at the place of business of her husband or herself.

Motion granted without costs; settle order. .

Motion granted, without costs.  