
    JAMES WATTS, Respondent v. CALEB B. KNEVALS as trustee, et al., Appellants.
    
      Discovery under § 806 Code Civil Procedure, before answer—grounds for denial of, (l) where the applicant avers he never made the instrument; (2) where the proof shows that the parly against whom the motion is made has not the possession dr control of the instrument.
    
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.
    
      Decided October 25, 1888.
    Appeal by defendants from order vacating order requiring the plaintiff to deposit with the clerk the agreement upon which the cause of action is based, or etc.
    
      Knevals <& Perry, attorneys, and James W. Perry, of counsel for appellants.
    
      Goodrich, Beady & Goodrich, attorneys, and of counsél for respondent.
   Per Curiam.

The application for the discovery, was professed to be made for the purpose of enabling the defendants 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: § 806 Code Civil Procedure. The proof on this subject was of such a nature, that the conclusion of the court below, as to this fact, cannot be reversed.

The order should be affirmed with $10 costs and disbursements to be taxed.  