
    Hauseman vs. Sterling.
    It has become the uniform practice, in the first' district, to refuse applications to compel the production of books and papers, on the examination of a party before trial; and that practice is the correct one.
    The statute has pointed out the only mode by which a discovery of books and papers can be obtained, before trial. To do so, the party applying must not only show what he wants, but must.also prove that he cannot obtain the information elsewhere.
    The case of Brett v. Bmknmn, (32 Barb. 655,) commented on, and questioned.
    APPEAL, by the plaintiff, from an order made at a special term, denying an application for an order to compel the production of books and papers on the examination of the defendant, before trial.
   By the Court, Ingraham, P. J.

It has become the uniform practice, in this district, to refuse applications to compel the production of books and papers, on the examination of a party, before trial. There is nothing in the Code to warrant it, and we think the practice prevailing here is the correct one.

The case of Brett v. Bucknam, (32 Barb. 655,) was under an order directing the production of books and documents. Even if that decision is correct, it does not authorize a' subpcena duces tecum, on such an examination; and if necessary, we should be disposed to overrule that case.

The statute has pointed out the only mode by which a discovery of books and papers can be obtained before trial. To do so, the party applying must not only show what he wants, but must also prove that he cannot obtain the information elsewhere. If he can get his adversary’s books and papers, to be examined by him before trial, in the mode proposed in this case, it would render the statutory provisions on this subject entirely nugatory. If either party wishes to obtain a discovery of books and papers in possession of Ms adversary, he must adopt the course provided by statute.

[First Department, General Term, at New York,

January 1, 1872,

Order affirmed.

Ingraham, P. J., and Geo G. Barnard, Justice.]  