Union Dime Savings Institution agt. Quinn.

$15,000. Such a view seems to be inconsistent with the other provisions in the stipulation to the effect that the bond and mortgage was "a valid and subsisting obligation to the extent of $16,000," &c., and also inconsistent with the provision that a collateral bond for $16,000 should be executed by Mary J. Quinn. The agreement reasonably means, I think, that the mortgagee should assume possession, and try, after payment of interest and other charges, to reduce the principal sum to $15,000, the mortgage, however, still remaining due. If after a reasonable time such a result was found to be unattainable, then I think that the agreement means that the mortgagee should account upon the same principles, and be held to the same responsibility, as any other mortgagee would be who is in possession, not having any agreement with the mortgagor (See Thomas on Mortgages, 81, 82, and cases cited; Hubbell agt. Moulson, 53 N. Y., 228, 229).

It does not seem reasonable that there being indisputably $16,000 due on the mortgage, the plaintiff was to hold the premises indefinitely, in the vain expectation that in some far distant future the income of the property would bring about a reduction of the principal sum to $15,000. It is said, however, that as the defendant gave up a counter-claim, alleged in her first answer, the construction just given to the stipulation would be unjust. The reply to this position obviously is, that the defendant received a credit upon the mortgage of $4,000, and a withdrawal of the pending suit for foreclosure.

The fee of her attorney was also paid, and a postponement of any further proceedings for foreclosure, for a reasonable time, to enable the plaintiff to try to effect the reduction of the principal to $15,000. In order that the difference between $15,000 and $16,000 should not be lost to the plaintiff, the provisions of the stipulation in reference to the collateral bond, and as to there being no defenses to the mortgage, were inserted. This was a fair compromise of the matters at issue. The only question remaining then is as to whether a reasonable time had elapsed when this action was commenced to

Martine agt. Albro.

have it fairly determined whether the principal sum could be reduced to $15,000. Three years and more having elapsed between the date of the stipulation and the commencement of the suit, I think this question must be determined in the affirmative, and that there must be judgment for the plaintiff.

As the testimony in respect to the rents and amounts received for interest and the amounts expended for taxes, assessments, &c., is not before me, the findings will be settled on three days' notice.

SUPREME COURT.

ALFRED D. MARTINE, by CLARK R. GRIGGS, his guardian, plaintiff and respondent, agt. WILLIAM H. ALBRO and others, defendants and appellants.

Discovery of books and papers Code of Civil Procedure, section 803– When the discovery of the books of a copartnership will be permitted in an action against one of the copartners.

The petitioner, a son of S. A. Martine, deceased, and an infant, petitioned the court, through his guardian, for leave to examine the books of S. A. Martine & Co., of which his father was a member during his life; and, also, the books of the succeeding firm, alleging that such examination would disclose a fraud in the sale of the interest of his father to his copartner, who is petitioner's half-brother: Held, that though, as a general rule, the discovery of the books of a copartnership will not be permitted in an action against one of the copartners, yet in this case, where the new firm was, to a certain extent, a continuation of the old firm, and one of the partners of the new firm succeeded to the interests of his deceased partner in the old firm, and continued to be representative of its assets; and the other partner, who had for years been in the employment of the old firm, having purchased an interest in such assets, and taken it subject to all the equities existing in reference to those assets, a discovery of the books of both firms should be allowed, so far as they relate to the assets and subject-matter of the action; it not appearing that the discovery is unnecessary or unreasonable.

First Department, General Term, March, 1882.

Before DAVIS, P. J., BRADY and DANIELS, JJ.

Martine agt. Albro.

APPEALS from orders of the special term.

A. J. Vanderpoel, for appellants.

John McDonald, for respondent.

BRADY, J. — Two appeals appear to have been taken in this case, one by Franklin Martine, and one by the defendants, Albro and Preudhomme.

The order appealed from was made under section 803 of the Code, relating to the discovery of books and papers, and is founded on the petition of Clark R. Griggs, as guardian ad litem of Alfred D. Martine, an infant son of Stephen A. Martine, deceased, in which it is alleged that the production and inspection of the books and papers is material and necessary to enable the plaintiff to properly prepare his complaint.

It appears that on the 9th day of January, 1876, Stephen A. Martine, who was then a member of the firm of S. A. Martine & Co., composed of himself and Franklin Martine, died, leaving a will by which he appointed the defendants, Albro and Preudhomme, executors, with power in their discretion to continue the business of the firm of which he was a member for a period of two years from his death. The executors qualified and entered upon the discharge of their duty.

The petitioner charges that the surviving partner conspired with the executors to effect, and did effect, a sale to him of his father's interest in the firm property for a sum far less than its value. It is alleged also that after the purchase, and by which Franklin Martine assumed the liabilities of the firm of S. A. Martine & Co., he continued the business under the name of the old firm, and subsequently to his purchase and on the 1st of August, 1876, entered into copartnership with one Perry T. Cumberson, when it would seem that the business was conducted under the name of F. Martine & Co., instead of that of the old firm.

Martine agt. Albro.

It appears that heretofore orders were granted for the examination of the defendants before trial, and for the production of the books of the late firm of S. A. Martine & Co., for inspection by the plaintiff, whereupon a stipulation was entered into between the plaintiff and the defendants, allowing such inspection by an expert, appointed by the plaintiff's attorney, under which stipulation the books called for by the plaintiff were examined, and other books of the firm for the years 1873, 1874, 1875 and 1876.

The inspection appears to have lasted from the 24th of May, 1881, to the 11th of June, 1881; but it is alleged, on behalf of the petitioner, that only a partial examination of the books was had under the stipulation, and that when the expert who was employed to make the examination desired to examine the books of F. Martine & Co., for the purpose of ascertaining at what prices the goods which were transferred from the firm of S. A. Martine & Co. to the firm of F. Martine & Co. were actually sold, and at the times when they were sold, and whether the sales corresponded with the prices at which said goods were taken by the last named firm, he was met with a refusal on the part of F. Martine & Co. to allow such examination to be made, and thereupon proceeded to compel such discovery as was necessary to enable the plaintiff to prepare the complaint. The application was resisted, but it resulted in an order directing the production of the books of the old and the new firms, and that they be deposited with the clerk of the court, there to remain for a period of thirty days, for the purpose of the discovery which was sought.

There is, perhaps, no positive averment in the petition that the books of F. Martine & Co. were in the custody or under the control of Franklin Martine. It was, doubtless, inferentially supposed, and properly so, that being a partner in the firm he had some control over the books. It is true that Mr. Cumberson, the more recent partner, swears that the deposit of the books in the manner directed would subject his firm VOL. LXIII 28

Martine agt. Albro.

to great annoyance and inconvenience; but even if that were so, it would not be sufficient in itself to prevent a discovery in such mode as would enable the plaintiff, without inconvenience to the firm of F. Martine & Co., to obtain the necessary information, and, if it be necessary to accomplish that, the order can be modified. The ground taken by the appellant chiefly is that the mere fact of a suit pending against Franklin Martine does not authorize the court to compel a discovery of the books of F. Martine & Co.; that it is not a matter of right to inspect books and papers, and that inspection is not given except in extraordinary cases, and where the refusal may involve the loss of a claim or defense; and it is asserted by the counsel for the defendants that no case can be found in which one member of a copartnership, in a suit against him individually, has been required to produce the books and papers of the copartnership, and he insisted that the whole motion is a fishing excursion. It must be said, as a general rule, that the discovery of the books of a copartnership will not be permitted in an action against one of the copartners (Reid agt. Langlis, 1 Mac. N. Gordon, 627-635; Taylor agt. Randall, Craig. & Phill., 104; Latz agt. Deacon, 6 Beav., 254, 258; Murray agt. Walter, Craig. & Phill, 114).

But this is a peculiar case, because Franklin Martine was one of the partners of the original firm, of which his father seems to have been the head, and the continuance of the business having been authorized by the executors of his father, they transferred to him the testator's interest in the firm and the assets, and thus he became possessed of the books of the old firm and its quasi representative, and his transfer of an interest in them was to a person who, upon his own statement, had been in the employment of the firm for a period of eighteen years, and which continued up to the time of the death of the senior partner.

The partnership thus created between Cumberson and Martine was connected with the old firm from the character