
    MAUTHEY v. WYOMING COUNTY CO-OP. FIRE INS. CO.
    (Supreme Court, Appellate Division, Fourth Department.
    November 18, 1902.)
    1. Examination before Trial — Discovery—Corporation Books and Papers.
    An ex parte order, requiring the secretary of defendant corporation to appear before a referee, at a time and place designated, and submit to an examination, and produce for the examination books and papers relating to a fire policy issued by it, is not objectionable, for not complying with Code Civ. Proe. §§ 803-809, relating to proceedings for the inspection of books; the order being an order for the examination of the secretary before trial, under section 872, subd. 7.
    2. Same.
    The order does not authorize an inspection of the corporation’s books and papers, but merely requires the production of them for the purpose of the examination, by enabling the secretary to refresh his recollection by reference to them.
    Appeal from special term, Erie county.
    Action by John Mauthey against the Wyoming County Co-operative Fire Insurance Company. From an order denying a motion to vacate an order, previously granted, directing the secretary of defendant to appear for examination, defendant appeals.
    Affirmed.
    Argued before McLENNAN, SPRING, WILLIAMS, HISCOCK, and DAVY, JJ.
    J. L. Woodworth, for appellant.
    Henry W. Killeen, for respondent.
   SPRING, J.

This action was commenced by the service of the summons, and from the affidavits used, upon which the original order was granted, it appears that it was commenced to recover upon an insurance policy, which it is claimed was issued by the defendant to one Barth Mauthey in the sum of $600. Mauthey died, leaving a last will and testament, devising the property upon which the dwelling claimed to be insured was situate to the plaintiff in this action, and the house was destroyed by fire. Plaintiff did not know that any policy was ever issued, but was so advised, and upon application to the defendant was informed by its secretary that the policy was numbered 1,918; and a letter was produced from the president of the company requesting the plaintiff to appear at its office in regard to the policy. The plaintiff complied with this request, and proofs of loss were prepared and retained by the defendant. The defendant refused, to produce a copy of the policy, and an order was granted ex parte requiring Mr. Smallwood, the secretary of the company, to appear before a referee, at a time and place mentioned in the order, and submit to an examination. An order was granted, on the application of che defendant, requiring the plaintiff to show cause why the preceding order should not,be vacated, specifying as the ground for such application that'it did not comply with article 4, tit. 6, c. 8, of the Code of Civil Procedure. This application was denied by the order from which this appeal is taken.

The original order requires the secretary to “produce for the purposes of such examination all the books and papers of the defendant which relate to or have any mention of the insurance policy issued by it upon the house of Barth Mauthey, upon which this action is brought.” The defendant evidently misconceived the ground upon which this order was granted. The proceeding for the discovery of papers (sections 803-809, Code Civ. Proc.) is entirely distinct from that relating to the taking of depositions pursuant to chapter 9 of the Code, and which relates to evidence, and is found in title 3 of that chapter (section 870 et seq.) The proceeding for the discovery of books and papers must be commenced by petition upon notice. Dick v. Phillips, 41 Hun, 603; Bloodgood v. Slayback, 62 App. Div. 315, 71 N. Y. Supp. 809; Code Civ. Proc. § 805. The proceeding under which this order was granted is the one by which the deposition of a witness or party, at the instance of an adverse party, may be taken; and by an amendment of section 872, subd. 7, when the party sought to be examined is a corporation, its books and papers may be directed to be produced as subsidiary to the oral examination. This does not, however, permit an inspection or examination of the books and papers of the defendant, as is permissible under the other procedure referred to; McGuffin v. Dinsmore, 4 Abb. N. C. 241; Duffy v. Gas Co., 59 App. Div. 580, 69 N. Y. Supp. 635; People v. Armour, 18 App. Div. 584, 46 N. Y. Supp. 317. The primary purpose of the proceeding is the oral examination of the secretary. In order, however, that it may not be rendered fruitless by the secretary claiming that he has no recollection of the issuance or of the provisions of the policy independent of the books of the defendant, the latter are required to be produced as an adjunct of the oral examination.

It is urged by the counsel for the appellant that the original order is too broad, in that it may permit an examination and inspection of the books of the defendant by the counsel for the plaintiff, which is beyond the scope of a proceeding of this nature. This point does not seem to have been raised in the special term, which omission might be a sufficient warrant for declining to modify the order upon this appeal. Waiving that question, however, we apprehend the order is not to be given the wide latitude which the appellant’s counsel seems to fear. The production of the books is for the purpose of the examination, by enabling the secretary of the defendant to refresh his recollection and his memory by reference to these books. It does not in terms permit the plaintiff’s counsel either to inspect ■or examine the books, and such permission is not fairly within its scope. We are not inclined to impose any restriction that will interfere with the plaintiff making a full examination of the secretary in regard to this insurance policy. If the affidavits used on the motion, and which are not controverted, correctly state the facts, the policy was issued and in force when the fire occurred, but has been burned or lost. If this be true, the defendant ought to be willing to furnish a copy of the policy to the plaintiff’s counsel, instead of making a contest on a ground entirely technical and apparently without justification.

The order is affirmed, with $10 costs and the disbursements of this appeal. If the counsel are unable to agree upon a time for the examination, the form of the order may be settled before Mr. Justice •SPRING upon two days’ notice. All concur.  