
    James McCreery and Others, Respondents, v. William Ghormley, and Others, Appellants.
    
      Discovery of looks, etc.— tending to establish a crime-—-Statute of Limitations — discovery granted unless the defendants show that looks are destroyed or prove the manner in which possession was lost.
    
    The objection that a proposed discovery of certain books and papers compels the ' persons defending the action to furnish against themselves evidence which tends to establish the commission of a crime is completely answered by the fact that any prosecution for the crime is barred by the Statute of Limitations.
    Where an application for such a discovery is made it will not be defeated by allegations contained in the affidavits of the defendants that neither of them has in his possession or under his control the books and papers in question.
    
      Where the fact that the hooks and papers once existed is not denied, the defendants must satisfy the court that they have heen lost or destroyed, or they must indicate the manner in which the defendants lost control or possession of them.
    Appeal by the defendants, William Ghormley and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of May, 1896, granting a motion made by the plaintiff for the inspection and discovery of certain hooks and papers.
    
      John F. Coffin and George Ryall, for the appellants.
    
      Eugene G. Kremer, for the respondents.
   Per Curiam :

The objection that the proposed discovery compels the defendants to furnish evidence against themselves tending to establish the commission of a crime is completely answered by the fact that the Statute of Limitations has barred any prosecution for the criminal offense. (People v. Mather, 4 Wend. 229; Close v. Olney, 1 Den. 319. See cases cited in opinion in Brown v. Walker, 161 U. S. 591, at page 598.)

In answer to the application were read the affidavits of the several defendants that neither of them had in his possession or under his control the books, papers and documents of which an inspection was sought. This is the only allegation in the affidavits upon the subject. This assertion was not sufficient to defeat the application. The several defendants did not deny the existence of such books and papers, nor did they account for the fact that such books and papers were not in their possession or control. If the books and papers once existed, it was incumbent upon the defendants to satisfy the court that either they had been lost or destroyed, or how and in what manner the defendants had lost control or possession of them. (Perrow v. Lindsay, 52 Hun, 115.)

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred, except Pratt, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  