
    MARTIN v. SPOFFORD.
    
      N. Y. Supreme Court, First Department; Chambers,
    
    
      November, 1877.
    Examination of Party before Trial.—Production of Books, &c., thereon.—Witness.—Sections 803, 804, 805, and 873 of Code of Civ. Pro.
    In the supreme court, a party to an action "will not be compelled to produce his books and papers by subpoena duces tecum,, while under examination as a witness before trial, under section 873 of the Code of Civil Procedure.
    The only mode by which a discovery of books and papers can be obtained before trial is under sections 803, 804, 805, &c„
    Motion by plaintiff to compel production of books.
    James Martin and others, composing the firm of Martin & Co., bankers, in London, England, brought this action against Joseph L. Spofford, and others, composing the firm of Spofford Bros. & Co., merchants, in Few York city, for an accounting for certain moneys, amounting to about $20,000, advanced by the plaintiffs to the defendants, under an agreement that the same should be used in carrying on the Atlantic Phosphate Rock Company, which money it was alleged had been misapplied by them.
    On October 19, 1877, an order was obtained for the examination of all the defendants under section 873 of the Code of Civil Procedure, to enable the plaintiffs to draw their complaint.
    During the examination under this order, one of the defendants was asked to state how much money was received, and when, and how much was paid out under the agreement with the plaintiffs ; and upon his replying that he was unable to do so except generally, plaintiff’s counsel asked him “ to produce at the next hearing the books, and exhibit the entries relating to the money in question ; or to have a correct, full and true abstract made from his books of the receipt of said money and the expenditure thereof by him.”
    Defendant’s counsel claimed that on an examination of this nature the party cannot be compelled to produce books and papers.
    This question was submitted to the court.
    
      John N. Whiting, for plaintiffs,
    Cited Glenney v. Stedwell, 1 Abb. New Cas. and note on pp. 327, 334, 336; Phenix v. Dupuy, 2 Id. 156-7; Hoyt v. Smith, 23 Conn. 177; Schmidt v. Dietericht, 1 Edw. Ch. 120.
    
      Prescott Hall Butler (Evarts, Southmayd & Choate, attorneys), for defendants.
   Lawrence, J.

I cannot but regard this as an application to compel a party to the action to produce his books and papers while under examination as a witness before trial. The weight of authority is against such an application (Havemeyer v. Ingersoll, 12 Abb. Pr. N. S. 301; Hausman v. Sterling, 61 Barb. 347). “ The statute has pointed out the only mode by which a discovery of books and papers can be obtained before trial” (per Ingraham, P. J., in Hausman v. Sterling, supra). The plaintiff’s course would seem to be to move for a discovery and inspection under sections 803, 804, and 805, et seq., of the Code of Civil Procedure.

Application is denied. 
      
       The common pleas followed the same rule under the former Code. De Bary v. Stanley, 5 Daly, 412. The N. y. superior court allow the supoena. Smith v. MacDonald, 1 Abb. New Cas. 350, and cases cited. The court have power in their discretion to allow it. Code of Civ Pro. section 7, subd. 1, section 852.
     