
    Richard C. Sibley, App’lt, v. The New York Times Publishing Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 12, 1894.)
    
    Deposition—Discovery and inspection.
    In an action on a contract alleged to be in defendant’s possession, plaintiff is entitled to inspect it to enable him to prepare his complaint,, where it is not shown that it is not within the defendant’s control.
    Appeal from an order, vacating an order requiring the defendant to permit the plaintiff to inspect certain documents.
    
      Frederic R. Kellogg, for app’lt; B. F. Einstein, for resp’t
   Per Curiam.

On March 29, 1893, the defendant was incorporated under the laws of ibis state, with an authorized capital of $1,250,000, divided into 12,500 shares of $100 each. Before March 29, 1893, several persons, who may be called promoters, interested themselves in obtaining subscriptions for shares in the corporation to be thereafter organized for the purpose of purchasing and conducting the New York Times. The plaintiff signed a contract by which he agreed to subscribe and pay $50,000 for 500 shares. At some timé, the date not appearing, the plaintiff paid $15,000 on his subscription, arid on April 7,1893, signed a contract by which he agreed to pay $35,000 to three of the promoters, or to their assigns, three months after date, with interest from April 1,1893. The plaintiff refused to perform this contract, and in August, 1894, the New York Times Publishing Company brought an action in this court against Sibley to recover the $35,000, alleging that it was the assignee of the contract. On July 17, 1894, this action was begun by the service of a summons without a complaint. On August 31,1894, the plaintiff verified a petition in which, it was stated that the action was brought to rescind the subscription contract on the groünd that it was obtained by fraud and deceit, and on the further ground that the corporation and its promoters had failed to perform the contract under and by which the subscription was obtained. It is further stated in the petition that it is necessary that the plaintiff be permitted to inspect the original subscription contract, the contract for the payment of $35,000, and the assignments of said two contracts, to enable him to prepare and serve his complaint in this action, and that repeated demands to be permitted to’ inspect those documents had been refused. Upon this petition a motion was made for an order requiring the defendant to permit the plaintiff to inspect these documents. The defendant, by its officers, denied that the plaintiff was defrauded or deceived, and denied that it or its promoters had failed to perform the contract under which the subscription was made.

We are unable to see any reason for refusing the plaintiff permission to sée the original contract for the payment of $35,000, or the original Subscription agreement, and the assignments of those two contracts, if any there are. The plaintiff is a party to these papers, and one of them, at least, is in the possession of the defendant. He has a right to know whether the agreement set up in the action in which he is a defendant is an exact copy of the original, and no harm can b?e done to the rights of this defendant in permitting such an inspection. Nor are we able to see why the plaintiff in this action should not have the right to inspect the original subscription agreement. The only reason given by the defendant for refusing this right is that on certain dates named the contract was not in its possession. It is not stated in the defendant’s affidavits that this contract was not within the control of the defendant, or of its officers or agents. We think that the right of the plaintiff to have an inspection of these two documents, and of the assignments of them to the defendant, if assignments in writing have been made, is clear. In case it shall turn out that the first subscription contract is not in the possession or within the control of the defendant, or of its officers or employes, it can apply to be relieved from the part of the order requiring it to file that contract for inspection, and then it can be determined whether a reference shall be ordered to ascertain its whereabouts. The order appealed from should be reversed, with $10 costs and disbursements.  