Husson a. Fox.

party as a witness. (Stalker a. Gaunt, 12 N. Y. Leg. Obs., 132.) It is not sufficient for a party to say that he thinks a discovery is necessary. He must show how and why it is necessary. (17 How. Pr., 480.) One of the first facts which should appear, on an application for a discovery of books and papers for the purpose of preparing for trial, is, that the applicant has not in his possession the same information, or, if he has, that he has not the means of establishing, by other available proof, the contents of such books or papers. (Per WOODRUFF, J. in McAlister a. Pond, 15 How. Pr., 299; People a. Trinity Church, 6 Abbotts' Pr., 177.) A statement in a petition for a discovery of books and papers, which in all its material allegations is capable of being condensed into a sentence like this: "we believe your books and letters will help our defence, and if they do, it is material for us that you should show them," is too vague and indefinite to grant an order of discovery upon. (Pegram a. Carson, 10 Abbotts' Pr., 340; S. C., 18 How. Pr., 519.

John M. Martin, for the respondent.-I. The appeal from the order in this action should be dismissed as not appealable. 1. The motion at special term was in the discretion of the court (Code, § 388), and as such is not appealable. (See 2 Whit. Pr., 230, and cases cited; also, 3 Code R., 85; 10 Barb., 303; 11 N. Y., 576.) 2. Nor is this appeal warranted by section 349 of the Code.

II. If appealable, the order of special term should be affirmed. 1. Because the petition and moving papers show the propriety and necessity of a production and inspection of the defendant's books, &c., and that without it the plaintiff will not be able to serve a new bill of particulars, or to proceed with the reference. 2. Because the opposing affidavits do not deny the most material part of the moving papers. 3. Because it appears that under the pretence of a friendly settlement with plaintiff, the defendant has obtained the knowledge of certain facts by an inspection of plaintiff's books and papers, and having obtained the advantage of such knowledge, he now seeks to avoid a like inspection of his books, &c.

III. All conflicting questions of fact raised by the affidavits have been settled in respondent's favor by the judge below, and will not be reviewed by this court.

Husson a. Fox.

SUTHERLAND, P. J.-By the order appealed from, the defendant was ordered to produce and discover all of his books of account, containing any of the accounts of the plaintiff with the defendant, from October 1, 1843, to November 1, 1854, and also the sales-book, journals, or day-book, showing the original entries of articles sold to plaintiff during said period; also the books of account showing the borrowed and lent money between the plaintiff and defendant during said period, and to permit the plaintiff to inspect the said books of account, and to furnish the plaintiff with sworn copies of the same, and of the entries therein, or permit the plaintiff to take copies thereof.

It appears to me that this broad order was granted without sufficient consideration.

The plaintiff states in his petition, that he lent to the defendant and received from him various sums of money, amounting in the aggregate to several thousand dollars, prior to June 26th, 1847, that he has omitted to charge the defendant in his journal, and in his bill of particulars, with some one or more of the sums of money lent him prior to June 26th, 1847, and "that he verily believes the said books of said defendant contain the entry or entries of such loans."

It is plain that the plaintiff had no knowledge or recollection of any particular sum or sums so loaned, and could not specify one or more. He states his belief that defendant's books contain the entry or entries of such loans, but he does not state facts and circumstances showing reasonable grounds for such belief. He had no right to an order which would enable him to turn over the leaves of the defendant's books, to see whether he could not discover something which would help his case. (Davis a. Dunham, 13 How. Pr., 425; Hoyt a. American Exchange Bank, 1 Duer, 652; S. C., 8 How. Pr., 89.) These remarks apply also to the statements in the plaintiff's petition that the charges in the defendant's bill of particulars for clothing furnished to the plaintiff will be found, on an inspection of the defendant's books, to be higher or larger than the original entries or charges in the books, and that the production and inspection of the defendant's books will show discrepancies between the defendant's bill of particulars and the accounts in the books.

I do not think, therefore, that the plaintiff's petition unan

Freeman a. Munns.

swered would have authorized the order made. But the petition was answered, and I think fully met by the defendant's papers. All the statements in the petition as the reasons or grounds for the discovery, appear to have been fully met by the papers read in opposition to the motion.

I think the order appealed from should be reversed, with $10

costs.

INGRAHAM and CLERKE, JJ., concurred.

FREEMAN a. MUNNS.

Supreme Court, First District; General Term, Feb., 1862.

FORECLOSURE.-VACATING SALE.-TITLE OF PURCHASER.-SURPLUS MONEYS.-CLAIMS OF INFANTS.-SECURITY ON APPEAL.

An order vacating the sale and opening the judgment in foreclosure renders invalid the title of the purchaser and his grantees.

Infants are specially entitled to protection in regard to their claims to property which is under the control of the court.

Thus where an order setting aside a sale and opening a judgment in foreclosure invalidated the title of an infant owner of the equity of redemption to surplus moneys arising from a second foreclosure, and it appeared that an appeal was pending from such order, and the question was not free from doubt;—Held, that proceedings should be stayed and facilities given to the infant for an appeal from the proposed order, with moderate security.

Appeal from an order directing the disposition of surplus moneys.

This action was brought by Lorrain Freeman against James Munns and wife, Anthony McReynolds, Helen A. Clark, Randolph Barnes, and others, to foreclose a mortgage for $5,600. After the sale and payment of the mortgage-debt and costs, there remained a surplus of $1,173.18. This surplus was claimed by Archibald M. Allerton, jr., and by Mary L. Clark, an infant daughter of the above-named Helen A. Clark, the latter having departed this life since the commencement of the

Freeman a. Munns.

action. The mortgage to Freeman was a first mortgage, and was recorded November 4th, 1857; there was a second mortgage, from Munns, upon the premises for $2,000 to Murphy and Dimond, which passed, by successive assignments, through Eli P. Sherman, Nelson Plato, Randolph Barnes, to Allerton, the claimant; there was also a third mortgage upon the same premises, from Munns to Anthony McReynolds, for $1,350.

In June, 1858, McReynolds commenced an, action in this court for the foreclosure of his third mortgage, making Lorrain Freeman and Eli P. Sherman the holders of the two prior mortgages, parties; the relief asked was that the premises. might be sold and the third mortgage paid after payment of the prior mortgages. Judgment was entered, after failure to answer, for foreclosure and sale and the payment, out of the proceeds, of the three mortgages in the order of their priority, as above stated.

The property was sold under the McReynolds judgment, September 28th, 1858, to McReynolds for $5,000, and the sheriff subsequently gave a deed of the property to McReynolds, under which the latter went into possession and made some improvements upon the house. On the settlement with the sheriff and Freeman, McReynolds executed to Freeman a further bond and mortgage for the sum of $5,600 and interest, which mortgage was recorded simultaneously with the sheriff's deed. Freeman thereupon receipted to the sheriff for $4,836.21 as so much of the proceeds of sale, and the original mortgage of November, 1857, was treated as still security for his debt and remained uncancelled. The sheriff made his report of sale October 6th, which was confirmed November 26th, 1858. A motion of defendant Sherman to set aside the sale and vacate the judgment was denied by Mr. Justice Ingraham, November 1st, 1858. On November 18th, McReynolds conveyed the mortgaged premises to Helen A. Clark. In September, 1859, the general term reversed the order of Mr. Justice Ingraham, vacated the sale, and opened the judgment; an appeal by McReynolds from the last order was pending in the Court of Appeals. The surplus moneys in the present action was awarded to Allerton, and Mary A. Clark appealed.

William R. Strafford, for the appellant.-I. The action in

Freeman a. Munns.

stituted by McReynolds, was regular, and the judgment therein barred and foreclosed Eli P. Sherman of all right and equity of redemption in the mortgaged premises, and extinguished the lien of the mortgage held by him thereon. 1. Sherman, by interposing no answer or demurrer to the complaint, and by appearing and proving the amount due him before the referee, assented to the proceedings, and is estopped from questioning their regularity or effect. (Blakeley a. Calder, 15 N. Y., 617; Western Ins. Co. a. Eagle Ins. Co., 1 Paige, 284.) 2. The foreclosure of Sherman's mortgage was properly prayed for, as it was due at the time the suit was commenced. (Vanderkemp a. Shelton, 11 Paige, 28.) 3. It was fully competent in that action to determine the ultimate rights of the parties as between themselves (Code, § 274).

II. By the purchase at the sheriff's sale, McReynolds took the premises free and discharged of all liens or incumbrances theretofore existing in favor of Sherman and the other parties to his action. He cannot be regarded as having purchased the equity of redemption only. 1. The sheriff had no power, under the judgment, to sell, and did not sell, the equity only. 2. The principle as to the purchase including the equity of redemption only, applies merely to cases where the prior mortgagee is not made a party to the suit. (McKinstry a. Curtis, 10 Paige, 503; Vanderkemp a. Shelton, 11 Zb., 28.)

III. The conveyance by McReynolds to Mrs. Clark, vested the title to the premises in her absolutely, and free from any lien by Sherman. 1. McReynolds had entered into and was in undisturbed possession; had improved and finished the house, and in good faith and for a valuable consideration sold to her. 2. At the time of the purchase McReynolds' judgment was subsisting and valid, and a motion to vacate the foreclosure-sale had been denied. 3. Her title could not be affected by the subsequent opening of that judgment without notice to her, and by proceedings over which she had no control. (Woodstock a. Bennet, 1 Cow., 711-734; Clarke a. Davenport, 1 Bosw., 95-120; Holden a. Sackett, 12 Abbotts' Pr., 473.)

IV. The order of the general term, September, 1859, could not affect the rights either of McReynolds, as purchaser, or Mrs. Clark as his vendee. 1. So far as it related to the sale, the order of Judge Ingraham was not appealable. 2. An ap