Frist v. Climm.

not excused from verifying his answer to a complaint charging him with having confessed or suffered a judgment, or executed a conveyance, assignment or other instrument, or transferred or delivered money, or personal property with intent to hinder, delay or defraud creditors, or being a party or privy to such a transaction by another person with like intent toward the creditors of that person; or with any fraud whatever affecting a right or the property of another." It is not claimed that any but the latter portion of this section applies to this case, the preceding merely refering to confessed judgments, fraudulent conveyances, and the like. The words "or any fraud whatever, affecting a right or the property of another, which are claimed by the plaintiff as applicable," probably mean "affecting the property of another or some right susceptible of injury by the fraud." If these words mean anything more, it is difficult to imagine a case of fraud to which section 529 does not apply, and impossible to find one to which section 523 can be made applicable. Every action is founded on the invasion of some right, but that circumstance does not alone necessarily bring the case within the purview of section 529 which is aimed solely at fraudulent transfers and the like, in reference to which the defendant is not excused from answering under oath the charges of fraud made against him in the bill of complaint. But in other actions in which the defendant is charged with crimes or misdemeanors he may avail himself of section 523 and serve his answer unverified. Effect cannot be given to both sections except by holding that section 523 contains the general rule in regard to such verifications and that section 529 contains the exceptional one applicable only to the cases therein enumerated. How far a witness may be obliged to testify in respect to the exceptional matters need not be considered as that is not made the test. In all other cases it is.

Melesy v. Kahn.

In the present instance the plaintiffs parted with all their property in the goods at the time of the sale. The action is to recover the contract price. Fraud is alleged as the inducing cause of the sale for the purpose of obtaining a judgment in a form in which the defendant may be made liable to arrest. But this does not make the action one affecting "a right of another' within the meaning of that term as used in section 529.

It follows that the defendant had the right to serve an unverified answer, and that the motions to compel the plaintiff to accept it must be granted.

MEHESY, APPELLANT, v. KAHN, ET AL., RESPOND

ENTS.

SUPERIOR COURT, GENERAL TERM, MARCH, 1884.

$$ 803, et seq.

Order for inspection of books, ctc.

When granted.

The granting of power to search through the books of account to find isolated entries not particularized, to enable plaintiff to frame his complaint, rests in the discretion of the court, and it should only be allowed where the purpose and necessity of such examination are apparent.

Accordingly, where in an application for an order to examine defendants' books to ascertain the names of persons to whom defendants had sold certain merchandise in contravention of their agreement to sell only to plaintiff, in order to enable plaintiff to frame his complaint, the petition alleges that defendants did so sell to other persons:-Held, that the application should not be granted; that the knowledge or information which enabled plaintiff to make this distinct and definite statement, was enough to enable plaintiff to frame her complaint.

(Decided March 21, 1884.)

VOL. VI.-3

Mehesy v. Kalın.

Appeal from order of special term denying petition of plaintiff for inspection and copy of entries in account books of defendants in order to ascertain the names of the persons to whom defendants had sold "hare bellies," in violation of their agreement with the plaintiff, and in order to enable the plaintiff to frame her complaint.

Simpson & Werner, for appellant

The discovery sought is material and necessary, and in the present case absolutely indispensable. 1. Its materiality appears by reference to the written contract. The defendants contracted to give their entire product of bellies during the period mentioned, and that they did not do so is shown by the petition presented. 2. Its necessity is shown by the allegations that the names and amounts are recorded in the books named, during the period designated, and that the petitioner "has no means whatsoever, outside of said books, of discovering or determining the amount of hare bellies which the defendant had or obtained, or parted with and sold and delivered to parties other than your petitioner, and in violation of the contract," and this after the positive averment that the defendants did sell and deliver to

other parties in violation of the contract. The plaintiff cannot possibly prepare a complaint, and truthfully verify it, as required by statute, without a disclosure, and if a complaint were by any possibility framed and served, the cause of action could be readily defeated by an application on the part of the defendants for a bill of particulars.

Benno Loewy, for respondent.

O'GORMAN, J.-There are many reasons why the decision of the special term should not be disturbed. The granting the order applied for was very much

Mehesy v. Kahn.

within the discretion of that court, and we see no reason to believe that such discretion was not properly exercised in this instance.

The plaintiff states in her verified petition, that the defendants did sell largely to other persons, and offered her the refuse after such sales of the best material. If she is possessed of knowledge or information sufficient to enable her to make this distinct and definite statement under oath, there can be no diffculty in framing a complaint calling for a definite verified answer to that allegation.

The power to search through the defendants' account books in order to find isolated entries, not particularized, to enable the plaintiff to frame a complaint, is open to great abuse and should only be granted where the purpose and necessity of such examination are apparent. At a later stage of the proceedings, when the issues between plaintiff and defendants shall have been developed, other appropriate measures can be taken by the plaintiff to obtain the information now sought, if it be found to be then necessary.

The order appealed from is affirmed, with ten dollars costs.

SEDGWICK, Ch. J., and FREEDMAN, J., concurred.

Strohn v. Epstein.

STROHN, ET AL. v. EPSTEIN, ET AL.

CITY COURT OF NEW YORK, SPECIAL TERM, JULY, 1884.

§ 2464.

Receiver in supplementary proceedings-Notice of application for, when necessary.

At least two days' notice of an application for the appointment of a receiver in supplementary proceedings must be given, in every case except where the application is made on the return day of the order or warrant or upon the close of the examination. [1] Failure to give such notice is an irregularity for which the order should be set aside. [2]

Where upon the conclusion of an examination of one of two judgment debtors before a referee, in proceedings supplementary to execution on a judgment recovered for a copartnership debt, and upon filing the testimony taken before the referee a receiver of the property of the debtors was appointed without notice to them :Held, that the order must be set aside, [2] and could not be confirmed; [3] also Held, upon proof that no other supplementary proceedings or judgment creditors' actions against the debtors were pending, and upon due notice of the application therefor that a receiver of their property should be appointed. [*] (Decided July 25, 1884.)

Motion by defendants that an order appointing a receiver of their property be vacated and set aside.

The plaintiff recovered a judgment in this court against the defendants who are copartners, and after the return of an execution against their property procured an order requiring the defendant, Charles F. Hine, to attend before a referee and submit to an examination as to his property in proceedings supplementary to execution.