Heckman v. Mackey.

subordinate provisions in such State statutes which in their judgment would unwisely incumber the administration of the law or tend to defeat the ends of justice in their tribunals."

In the case at bar it is not even a question of disregarding a subordinate provision of a statute. The State act contains no language sustaining defendant's position, and the construction contended for has not been approved by any appellate tribunal of the State. Under these circumstances, such construction may be rejected as tending in this case to defeat the ends of justice.*

Defendant further contends that the order should be vacated, because the petition states that the plaintiff is a resident of the State of New Jersey, but does not state that he is a citizen of the United States.

Plaintiff is in fact both citizen and resident of New Jersey, and the proper averment as to citizenship appears in his complaint.

Under these circumstances, the order should not be set aside for lack of jurisdiction, but the plaintiff may be allowed to file nunc pro tunc as of the date of the presentation of his petition, an affidavit setting forth his citizenship.

*For some time the courts of this State refused to permit an infant to sue in forma pauperis for the reason that he was required by the Code to give security for costs. Vide Kleinpeter v. Enell (N. Y. Mar. Ct. Sp. T., May, 1882), 2 N. Y. Civ. Pro. 21; In re Daly (N. Y. Mar. Ct. Chamb., May, 1882) 2 Id. 22, note. But the later decisions established a different rule, and now an infant may prosecute an action in forma pauperis, notwithstanding the provisions requiring security for costs, and where he so prosecutes or leave to so prosecute is given, he will not be required to give security for costs. Erickson v. Poey (Ct. App. 1884), 5 N. Y. Civ. Pro. 379; Hayes v. Second Ave. R. R. Co. (Supm. Ct. N. Y. Co. Sp. T., March, 1884), 5 Id. 155; Hotaling v. McKenzie (Supm. Ct. Ulster Co. Sp. T., May, 1884), 7 Id. 320; Nichols v. Cammann (C. Ct. of Brooklyn, Aug. 1882), 2 Id. 375. Irving v. Garrity (Supm. Ct. Kings Co. Sp. T., Aug. 1883), 4 Id. 105. The same reasons that control in determining the right of an infant to sue as a poor person would seem to apply to the case of a non-resident plaintiff, and sustain the position taken in the opinion above reported.

McIlhanney. Magie.

Upon the filing of such affidavit, the motion to vacate the order allowing plaintiff to prosecute the action as a poor person is denied.

McILHANNEY v. MAGIE.

SUPREME COURT, FIRST DEPARTMENT, NEW YORK COUNTY, SPECIAL TERM, JUNE, 1887.

$$ 803, 804.

Discovery of books, etc.—When not ordered, because possession thereof positively denied.

A motion for a discovery of account-books will be denied, where the party from whom the discovery is sought positively denies that he has possession thereof.

(Decided June, 1887, and October 20, 1887.)

Application by plaintiff for a discovery of account books alleged to have been in possession or under control of the defendant.*

This action was brought to recover $1,500, alleged to have been wrongfully retained by the defendant while acting as the plaintiff's agent. The moving papers, including the complaint, petition and numerous affidavits, allege that defendant had various account-books which he as agent kept for plaintiff ; that in these books are important entries essential to plaintiff in preparing for trial. fendant denies positively that he has in his possession or under his control any of the books referred to in the petition and other moving papers. The defendant's denial was

De

* A prior application for discovery was made by plaintiff and denied ; but on other grounds. See 12 N. Y. Civ. Pro. 27, where the decision is reported.

McIlhanney v. Magie.

as follows: "I have not the books in my possession or under my control which the plaintiff describes. . . . I unqualifiedly deny that I have either in my possession or under my control the said books or any or either of the books. I further deny, without any reservation or qualification, that I ever had in my possession or under my control any books referred to in the said petition and order, except as previously stated in my affidavit."

The plaintiff submitted many affidavits to the effect that defendant had been known to have books in his possession. The allegations in these affidavits were controverted by defendant's affidavit. He also averred that plaintiff himself had possession of the books he sought to discover.

H. E. Hewson (Hamilton Cole, attorney), for plaintiff and motion.

The denial of the defendant is overcome by the affidavits submitted by plaintiff, and the rule on which defendant relies should not be adhered to in this case.

Chauncey B. Ripley, for defendant, opposed.

The court can not look beyond the unqualified denial of the defendant. Such denial puts an end to the proceedings. In Aboyke v. Wolcott (4 Abb. Pr. 41), it is held : "When a party who is called on to make the discovery, denies under oath, the possession or control of the books, papers, &c., ordered to be produced, the court has no power to look behind the denial." In Bradstreet v. Bailey (4 Abb. Pr. 233), where a second application for discovery of books and papers was made by the petitioner, and the respondent answered "that to the best of his knowledge and belief, it" (the document sought to be discovered) was delivered to the defendant, "and positively" that it is not in his possession or under his control, and has not been, since a prior motion to this effect was made, which was denied"; the court say, per PEABODY, J.,-" Ex necessitate, this must be a sufficient reason for

VOL. XIII.-2.

McIlhanney v. Magie.

refusing the order." The case of Hoyt v. American Exchange Bank (8 How. Pr. 89, 92), at general term, per BOSWORTH, J., holds: "If the party answers distinctly and unevasively, that as to all or any of the papers or documents or entries of which a discovery is sought, that there are no such papers or documents in his possession or under his control, and that there are no entries relating to the specific subject matter or except such as he has furnished copies of, the applicant must abide by the answer so far as proceedings for discovery are concerned.” The present practice for the discovery of books and papers is virtually the same as it was formerly under the Revised Statutes, when the above cases were decided. The rules of court are essentially the same now as then. Cutter v. Pool, 54 How. Pr. 311; Shoe & Leather Reporter Association v. Bailey, 49 N. Y. Super. Ct. (17 J. & S.) 385; Code Civil Pro. § 804; Supreme Court Rules, XIV, XVII.

LAWRENCE, J.-As the defendant denies in the most positive terms that he has possession of the books referred to in the plaintiff's affidavits, the motion for a discovery must be denied.

Upon the same papers a re-argument was had in October, which resulted in the following decision.

LAWRENCE, J.-Having re-examined the affidavits in this case, I see no reason for changing the opinion heretofore expressed, that the motion for a discovery should be denied. Order granted.

Johnstone v. Conner.

JOHNSTONE, RESPONDENT, v. CONNER AND
ANOTHER, APPELLANTS.

CITY COURT OF NEW YORK, SPECIAL TERM, JUNE, 1887; AND GENERAL TERM, SEPTEMBER, 1887.

S$ 1309, 1326, 1327.

Costs-Liability on undertaking on appeal where judgment affirmed as to one of several respondents Notice of affirmance, when not necessary before suing on undertaking.

Where a judgment in favor of three defendants was affirmed with costs on appeal to the court of appeals as to one defendant, and reversed as to another, the defendant succeeding on such appeal is entitled to recover from the sureties upon an undertaking given to perfect the appeal and stay proceedings, the costs of the action and of the appeals, notwithstanding the judgment at trial term, and at general term was a joint judgment in favor of himself and the defendant as to whom they were reversed, [1,4,5] and the party as to whom the judgments are reversed is not a necessary party to such action. [3] Where a joint judgment in favor of two defendants is affirmed as to one of them, and reversed as to the other, the latter, by force of the decision, ceases to have any proprietory interest therein; but as to the other party, it remains unimpaired and in full force; and he has power to enforce the judgment and is entitled to maintain an action upon an undertaking given by his opponent upon appeal therefrom. [1,5]

It is not necessary, before suing upon an undertaking on appeal to the court of appeals, to give notice of the affirmance of the judgment appealed from. [2]

Weil v. Kempf (12 N. Y. Civ. Pro. 379), followed. [2]

(Decided at special term June 30, 1887; at general term, September 30, 1887.)

Hearing at special term of demurrer to plaintiff's complaint.

This action was brought on an undertaking on appeal to