
    (154 App. Div. 854.)
    MURDOCK v. McCUTCHEN et al.
    (Supreme Court, Appellate Division. Second Department.
    January 10, 1913.)
    1. Discovert (§ 95)—Persons from Whom Discovert mat be Had.
    One may not have discovery and inspection of records which are the property of and in possession of another than the one against whom is the cause df action; but the remedy is by subpoena duces tecum.
    [Ed. Note.—For other cases, see Discovery, Cent. Dig. § 121; Dec. Dig. § 95.*]
    2. Discovert (§ 94*)—Persons Entitled to Discovert—Subrogation.
    Plaintiff, having a cause of action against the executors of a deceased member of a firm, may not have discovery and inspection of records which are the property of the surviving partners, on the theory of subrogation to the rights of the executors; the only right of discovery and inspection which the executors have being incidental to an accounting by the survivors to the executors.
    [Ed. Note.—For other cases, see Discovery, Cent. Dig. § 120; Dec. Dig. § 94.]
    Appeal from Special Term, Kings County.
    Action by Harvey Murdock against Charles W. McCutchen and others, composing the firm of Holt & Co. (said McCutchen being also sued as sole surviving member of the former firm of Holt & Co.), and Thomas D. Deeming and another, executors of Leonard J. Busby, deceased. Defendants Philetus H. Holt and William L.- Ammerman, members of said firm, demurred to the complaint. Defendants Deeming and Brooklyn Trust Company, executors, moved for judgment on the pleadings. Demurrer sustained, and motion granted, and plaintiff appeals. Affirmed.
    The following is the opinion of Blackmar, J., at Special Term.
    The situation, as I see it, is this: There are in the books belonging to Holt & Co., certain entries which are evidence in the action now pending in this court, in which the present plaintiff is plaintiff and the personal representatives of a Mr. Busby, a deceased partner of Holt & Co., are defendants. As between the plaintiff and the defendants in the other action, plaintiff has the right of discovery and inspection of these records. This right has "been adjudged in that action, and an order entered to that effect and sustained upon appeal. The order, however, is ineffective, because the records .are hi the possession of the new firm of Holt & Co., who are not subject to the order in the other action. The books which contain these entries are the property of that firm, and, as against the members of that firm, the plaintiff has no rights, except the right which every litigant has to secure evidence wherever it exists.
    
       When evidence in the shape of writings is in the possession of persons who are not parties to the action, I know of no way to obtain possession of it except by subpoena duces tecum. This method is open to the plaintiff in the action which he has brought against the executors of Mr. Busby. I can understand that he could much more effectively handle this evidence, if he -could examine it at his leisure, and analyze it and digest it; and he attempts to maintain this action for the purpose of- facilitating the trial of the .other action by an examination of the evidence before it is presented at the trial. I know of no such action. It may be that, in the case of persons who occupy fiduciary relations to each other, the court will secure the right which each has against the other to an inspection of the records, which are the property of both by a bill in equity laid for that purpose only. But such is not the case here. The plaintiff has, as against Holt & Co., no right whatever "to a discovery and inspection of records in their books. Holt & Co. are not liable to the plaintiff, either in an action upon contract or tort. They .are, so far as rights and liabilities are concerned, strangers to each other.
    
       Neither can the plaintiff maintain this action upon the theory that he is subrogated to the rights of the executors of Busby to inspect the accounts •of the firm of which the deceased was a member. The surviving member -of a partnership takes the legal title to all the property of the partnershii -as the survivor of joint owners.1 The only liability which he is under is t( account to the representatives of the deceased partner, and the only right of discovery and inspection is one incidental to such accounting. If thit .action can be maintained, then by parity of reasoning an action can bt brought against any witness to obtain evidence in aid of another action. Tin ■remedy which the law affords plaintiff in the action brought by him anti .pending against the executors of Busby is the subpoena duces tecum.
    The demurrers of the defendants Holt and Ammerman are sustained, and ■the motion by the defendants Leeming and Brooklyn Trust Company is granted. The decision is that the complaint does not state facts sufficient to constitute a cause of action. Judgment is directed, dismissing the complaint, with one bill of costs. Plaintiff may amend, upon payment of such costs uithin' 20 days, if he so desires. Settle decision and order on notice.
    Argued before JENKS, P. J., and HIRSCHBERG, BURR, THOMAS, and CARR, JJ.
    Kellog & Emery, of New York City, for appellant.
    Ivins, Mason, Wolff & Hoguet, of New York City, for respondents Holt and Ammerman.
    Dyltman, Oeland & Kuhn, of Brooklyn, for respondents Leeming and Brooklyn Trust Co.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

Interlocutory judgment and order affirmed, with •costs, upon the opinion of Mr. Justice Blackmar at Special Term.  