
    Peter R. Strong, plaintiff and appellant, vs. Mart E. Strong, defendant and respondent.
    1. A simple sworn statement, by a party to an action, that certain letters written by her to a third person, which have come to the hands of the counsel for the opposite party, are, as such applicant is advised, material and necessary for her defense, is not sufficient to authorize the granting of an order to produce such letters, or deliver sworn copies of the same. The advice of counsel, or belief of a party, cannot be substituted for the judgment of the court upon the facts and circumstances showing the necessity for such production.
    2. Where there is no sufficient information before the court, of the contents of writings, to enable it to judge whether they would' be beneficial or prejudicial to either party as evidence, it ought not to compel their production. A mere fishing application should be denied.
    3. Although all the parts of a continued and connected correspondence, having relation to a particular subject, become evidence when one is introduced, upon the presumption that as they all belong to a series, they have some connection with each other, no such presumption can arise in regard to ordinary friendly letters between intimate connections. It will not be presumed that all of such letters must necessarily relate to the same subject.
    4. Production of letters written by a party will not be ordered, where the want of possession of copies, or recollection of their contents, is not sworn to by the author of them, but by a third party, alone, and not even on information and belief; and no information is given how the person verifying it learned that the letters were intended to be used on the trial, or what person has the intention so to use them.
    (Before Robertson, Ch. J., and Garvin and McCunn, JJ.)
    Heard February 11, 1865.
    
      Appeal from an order made at special term, requiring the plaintiff to deliver to the defendant sworn copies of certain letters written by the latter.
    This was an appeal from an order made at special term requiring the plaintiff to deliver to the defendant sworn copies of two letters written by the latter to a third person, (Mrs. Bedell,) and by her delivered to the plaintiff’s counsel. The motion for such order was made on the pleadings, the answers of Mrs. Bedell to interrogatories on a commission, and a petition in the defendants’s name, but verified by her brother, (J. A. Stevens,) in which verification the contents of such petition were stated to be true, of his own knowledge, except as to matters stated therein upon information and belief, as to which he was informed and believed they were true. Absence of the petitioner from the city of New York, and ignorance as to her place of residence, were assigned as reasons for not verifying such petition by her own oath. Such motion was opposed on an affidavit by the plaintiff, and also of his counsel, (M. Hoffman, Esq.) admitting the possession of the letters.
    The action was for an absolute divorce. Mrs. Bedell, in answer to interrogatories annexed to such commission to examine her, testified to the contents of certain letters received by her from the defendant, and by her destroyed, and stated that in them the defendant confessed her criminality. The letters in question were not exhibited to the witness on such examination, nor were either they or their contents proved by her; she only testified to sending them to the plaintiff’s counsel. The petition in question alleges what the plaintiff’s affidavit denies, namely, that Mrs. Bedell testified to the contents of the letters in question. The former also stated that the defendant had no copies of them, and therefore could not state with accuracy their contents.
    
      M. A. Oram, for the plaintiff, appellant.
    
      E. T. Gerry and J. McKean, for the defendant, respondent.
   Robertson, Ch. J.

The order appealed from appears to have been based upon the assumption of a fact, or a principle, and a presumption of law, none of which, in my judgment, can be sustained.

The fact is assumed, that the letters in question belonged to a series, which, of course, implies some connection with each other ; whereas, nothing of the kind appears any where in the papers before us. All the parts of a connected correspondence bearing relation to the same subject may undoubtedly all become evidence where one is introduced. But no such presumption could arise in regard to friendly letters between intimate connections, In the case of Ferguson v. Hely, (10 Jurist N. S. 34, February, 1865,) the motion was granted expressly upon the ground that the correspondence was an entirety, and the parts required to be produced contained evidence in favor of the defendant, to shew a rescisión of the contract sued upon. There is no pretense in this case, except by surmise of counsel, that the letters in question contain any thing favorable to the defendant. On the contrary, the suggestion was made that the defendant was entitled to an inspection of them, the better to enable her to explain, on the trial, any unfavorable statements in them.

The principle of law applied, was that the 388th section of the Code did not require that documents whose production was sought for under it, must be such as could be read by the applicant on the trial. That section does require that they shall contain evidence in relation to the matters to be tried, but divides such evidence into that relating to the merits.of the action, and that relating to the defense, evidently intending by the former an application by the plaintiff, and in the latter one by the defendant. If it had been intended that either litigant had a right to know what evidence his adversary intended to introduce against him, such principle would have included the briefs, memoranda of law and facts of counsel, and instructions of their clients, as well as documents, and, indeed, should extend to an oral examination of the parties themselves. The law has always considered sacred the right of both, parties to keep secret their preparations and means of attack and defense, the right of discovery being confined entirely to evidence in the applicant’s favor. But, even, if such section (388) were susceptible of such a latitudinarian construction, there is no room for its application in this place; since there is no proof before us that the letters demanded contain any evidence relating to the matter in issue. .

And, lastly, it was presumed that such letters being part of a series, as they are called, must have related to the same subject. I know óf no principle upon which every friendly letter between the same parties is to be presumed in law to continue to advert .to some one subject; or that confessions of guilt on that subject must be supposed to be reiterated, or protestations of innocence inserted in every one. Every thing is sometime or other brought to an end, and every subject is sometimes absent from our thoughts or writings. Even a friend does not always continue to be a confessor. And there is no experience of mankind which warrants the conclusion adopted in this case.

The application was made upon quite slight grounds. The want of possession of copies of the letters, or recollection of their contents, is not sworn to by the defendant, but by a third person alone, and that, too, not on information and belief. How it is possible for one person to testify to the want of such possession, and recollection by another, I am at a loss to conceive. It has not the support of even information to that effect by that other and confidence in it by the recipient. Even the residence of the defendant is unknown to her brother, and no communication seems to have passed between them since the examination of Mrs. Bedell. The petition is also vague in not stating how the person verifying it obtained the information that such letters were intended to be used on the trial, or who had such intent.' At all events, the intent would be of little avail, if they were not admissible as evidence.

It is true, that the petition states that such letters are, as the defendant is advised by her counsel, material and necessary .for the defense of the defendant, which consists of a denial of the allegations of the complaint. But the advice of counsel, or belief of a party, cannot be substituted for the judgment of the court upon the facts and.circumstances shewing the necessity of the production which are to be spread before it. (McAllister v. Pond, 15 How. 299. Jackling v. Edmonds, 3 E. D. Smith, 539.) The court, therefore, not having before it sufficient information of the contents of such letters to enable it to decide that they would be either prejudicial or beneficial to either party, as evidence, ought not to compel their production ; as the application becomes thereby entirely a fishing one.

The order appealed from should be reversed, with costs.

Garvin, J, concurred.

McOunn, J. dissented/  