Opdyke v. Marble

Leonard, J.

The motion made by the plaintiff is under the provisions of the Revised Statutes, for a discovery of books, &c., of “The World Company.” The object of the discovery is alleged to be for the purpose of enabling the plaintiff to prepare his complaint with the names of real defendants, to be inserted in the place of certain fictitious names contained in the summons.

The action is to recover damages for an alleged libel published in the newspaper called “The World,” of which those defendants whose real names are inserted in the summons, are editors or publishers.

There are several reasons why this motion must be denied.

1st. By the Rev. Stat., 199, § 22, this court are to prescribe rules regulating the proceedings for a discovery, in which the court are required to be governed by the principles and practice of the Court of Chancery in compelling discovery. Neither the Revised Statutes nor the rules can, therefore, be invoked as authority for ordering a discovery in any case where it would not have been allowed by the principles or practice of the late Court of Chancery. Nothing is better settled than that no discovery could be obtained under the practice of that court in an action for libel.

2d. There is not a single statement in the moving-papers, showing what entry exists in the books, &c., of which a discovery is sought, which would disclose the names of those whom the plaintiff might desire to join as parties-defendants. He says he is informed and believes that these books, &c., will show, &c.

That is not sufficient. What entry, or what name is there to be found, he does not pretend that he can state, even on information or belief.

*270 Parties are not to be allowed to fish for evidence in the private books of account' of others who are parties to an action, upon a simple guess that there may be some entry that will help their case.

3d. The discovery is not necessary to enable the plaintiff to frame his complaint.

Such a discovery is to obtain facts necessary to state the cause of action. Here the discovery has no relation to the cause of action. It relates only to the parties to the action. The facts which are the cause of action are well known to the plaintiff. The discovery is only to find out who he can sue for it.

Such is not the office of a discovery under the practice of courts of law.

4th. It appears from the moving-papers that the books, &c., of which a discovery is sought, belong to a corporation called “ The World Company,” and not to the parties who are defendants in the action, either real or fictions.

The individual defendants against whom the proceeding is instituted, cannot be compelled to produce account-books over which they have no control, except as agents of the corporation.

It is true the plaintiff alleges that the corporation is a sham, but that is a question that cannot be settled on a motion. Prima-faoie the conclusion must be otherwise.

The motion cannot be sustained under the Code, § 388. Indeed, it was not suggested at the argument that the application was made pursuant to the provisions of the Code.

The authority for a discovery under the section of the Code just referred to, resides in the discretion of the court, only where the books, &c., sought to be discovered, contain evidence relating to the merits. By the merits, as there mentioned, the facts material to the prosecution or defence of the action are referred to; not the names of the parties. The names of the parties have no relation to the cause of action, or its merits.

The motion for discovery is denied, with $10 costs.

In respect to the motion to strike out portions of the affidavit of Wm. S. Opdyke as scandalous, &c., the motion is granted

*271 as to that part through which I have 'drawn a pen in the accompanying copy, with $10 costs.

I do not think it necessary to consider the question as to how far the attorney and counsel ought to be made liable for the costs of this motion.

I shall not attempt to perform the duty of a disciplinarian on the suggestions of others, except in those cases of misconduct where I will be certain that I do not lend myself to gratify the personal animosities of political adversaries.

I do not wish to be understood as asserting that such is the case here, but it is not free from a doubt.