Schultze v. Huttlinger , 130 N.Y.S. 53 ( 1911 )

Scott, J.:

Appeal from an order granting defendant ah inspection of certain drafts.

The action is brought upon a foreign judgment alleged to have been recovered against the firm of Huttlinger & Vivie, of. which defendant was formerly a partner. It is not apparent how an inspection of the drafts can be of advantage to defendant. It is true that the judgment sued upon was based upon certain drafts, but in such an action as this the drafts themselves will not be material. If the judgment is a valid adjudication against the firm, the defendant will not be permitted to retry in this action the causes of action upon which the judgment was recovered. On the other hand, if the judgment is not a valid adjudication, the plaintiff under his pleading cannot shift his ground and attempt to recover on the drafts. So in neither event can the drafts become relevant evidence on the trial. Furthermore, it is not shown that the drafts .are in plaintiff’s possession or under his control, nor is any reason shown why they should be presumed to be. The defendant’s theory is that a third person, not a party to the action, paid them to the bank. If so, it would seem to be probable that they are in the possession off that third person.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.