
    Iroquois Hotel and Apartment Company, Respondent, v. Iroquois Realty Company, Appellant.
    First Department,
    June 19, 1908.
    Practice — inspection of books — material issue.
    Damages being claimed and denied their amount is a material issue and defendant has a right under section 803 of the Code to inspect books kept by the plaintiff in its business showing profit and loss.
    The defense need not necessarily be affirmative to entitle defendant to such inspection.
    Appeal by the defendant, the Iroquois Bealty Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of February, 1908, denying the defendant’s motion for a discovery of the books and accounts of the plaintiff.
    
      Roger S. Baldwin, for the appellant.
    
      John J. Cunneen, for the respondent.
   Per Curiam :

The action is for damages for an alleged wrongful eviction of the plaintiff from premises used as a hotel.

In conducting its business the plaintiff kept books showing resulting profit or loss and these books defendant asked to be permitted to "inspect. The defendant denies the wrongful eviction or that any damage- resulted. The books of the plaintiff will show whether the hotel business was profitable or not, and if profitable to what extent plaintiff suffered damage from its eviction. Damages being claimed and denied their amount is a material issue in the case. Section 803 of the Code of Civil Procedure permits an inspection of the books or papers of an adverse party “ relating to the merits of the action or of the defence therein.” A right of inspection of books and papers is thus expressly given by the Code to a defendant where they affect the merits of the defense, and this defense need not necessarily be an affirmative one. Such inspection may greatly facilitate the trial and relieve the court from much detail as well as apprise the parties so they may meet the particular dispute involved and should be granted where a proper case is disclosed. (Hart v. Ogdensburg & L. c. R. R. Co., 69 Hun, 497; Powers v. Elmendorf, 4 How. Pr. 60; Rhoades v. Schwartz, 52 App. Div. 379; Edmonds v. Attucks Music Publishing Co., 117 id. 486.)

We think the defendant showed facts entitling it to the inspection asked for. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.

Present — Ingraham, Laughlin, Clarke, Houghton and Soott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.  