
    Thomas D. Stichter et al., Resp’ts, v. Benjamin F. Tillinghast, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Discovery—Code Civil Pro., chap. 8, title 6, art. 4—May be had AFTER ISSUE JOINED—GROUNDS.
    Under Code Civil Procedure, chapter 8, title 6, article 4, a discovery may he had after issue joined and for other grounds than those specified in the fourteenth supreme court rule.
    2. Same—Application must show what.
    But where the application is made after issue joined, it must show that the discovery is sought to prove his cause of action or his defense.
    3. Examination of party—Code Civil Pro., chap. 9, title 3, art. 1 — When allowed.
    A party cannot he examined under Code Civil Procedure, chapter 9, title 3, article 1, except for the purpose of proving the applicant’s cause of action or defense.
    Appeal from an order permitting plaintiffs to inspect the books and accounts of defendant’s assignor.
    
      Frank H. Hiscock, for resp’ts; B. T. Wright, for app’lt.
   Follett, J.

This order was applied for and granted after issue was joined; but it has been twice held that a discovery may be had after issue joined, under article fourth, title sixth, chapter eighth of the Code of Civil Procedure, and for grounds other than those specified in the fourteenth rule of the supreme court. Amsinck v. North, 2 Month. L. Bul., 67; aff’d 62 How., 114; S. C., 12 N. Y. Week. Dig., 573; Babbitt v. Crampton, 1 N. Y. Civ. Pro. R., 109; S. C., 12 N. Y. Week. Dig., 13.

An application after issue joined must show that the discovery is sought to aid the applicant to prove his cause of action, or his defense. Douglas v. Delano, 20 N. Y. Week. Dig., 85; Andrews v. Townsend, 2 N. Y. Civ. Pro. R., 76; S. C., 16 J. & S., 162; The Shoe and Leather Association v. Bailey, 17 id., 385; Mott v. The Consumers Ice Co., 52 How., 148; 2 Wait’s Pr., 531; Baylies’ Trial Pr., 120; Hall on Discovery, 3 Am. ed., 197.

The general term of the supreme court, of the superior court and of the court of common pleas are in accord on this question. This court held in Adams v. Cavanaugh (37 Hun, 232), that a party cannot be examined under article one, title three, chapter nine of the Code of Civil Procedure, except for the purpose of proving the applicant’s cause of action, or defense.

The papers upon which this order was granted do not show, or even allege that the books will furnish evidence which will aid the plaintiffs to establish then cause of action. _ There seems "to be no excuse in this case for the omission of definite allegations, as the plaintiffs’ counsel has been permitted to examine the books for two days, and defendant offered a further examination, and to permit them to be examined by an expert to be agreed upon by the parties.

An examination under an order seems to be sought because defendant refused to permit an examination by an expert unknown to him and not named by plaintiffs.

We think the allegations in the moving papers insufficient to support the order.

The view taken of the merits of this appeal renders it unnecessary to consider whether supreme court rule 37 was a bar to granting this order upon an order to show cause returnable out of the judicial district in which the venue of the action was laid.

The order is reversed, with $10 costs, and printing disbursements, and the motion denied, with $10 costs, but without prejudice to the right of the plaintiffs to make a new application for discovery, upon the payment of the costs.  