§ 802. This article not applicable to service of summons, etc.— This article does not apply to the service of a summons, or other process; or of a paper to bring a party into contempt; or to a case where the mode of service is specially prescribed by law. Co. Proc., 418, and part of id., 408.

ARTICLE FOURTH. *

DISCOVERY OF BOOKS AND PAPERS.

Enc. 803. Court may direct discovery of books, etc.
804. Rules to prescribe the cases, etc.

805. Petition for discovery, and order thereupon.
806. Order, when and by whom vacated.

807. Proceedings upon the return of the order.
808. Penalty for disobedience.

809. Effect of papers, etc., produced.

§ 803. Court may direct discovery of books, etc.A court of record, other than a justices' court in a city, has power to compel a party to an action pending therein, to produce and discover, or to give to the other party, an inspection and copy, or permission to take a copy, of a book, document, or other paper, in his pos session or under his control, relating to the merits of the action, or of the defence therein.

2 R. S. 199, 21, consolidated with Co. Proc., 388. Campbell v. Hodge, 4 T. & C. 540: s. c., 2 Hun, 308; Harbeson v. Van Valkenburgh, 5 id. 454; Brett v. Bucknam, 32 Barb. 655; Gould v. McCarthy, 11 N. Y. 575; Walker v. Granite Bank, 44 Barb. 39; Opdyke v. Marble, id. 64; 18 Abb. 266; Davis v. Dunham, 13 How.425; Hoyt v. Am. Exch. Bank, 8 id. 89; 1 Duer, 652; Brevoort v. Warner, 8 How. 321; Dale v. Fellows, 5 id. 451; McKeon v. Lane, 2 Hall, 520; Bowne v. Cribb, 20 Wend. 682; Townsend v. Lawrence. 9 id. 458; Meakings v. Cromwell, 1 Sandf. 698; Powers v. Elmendorf, 4 How. 60; Stalker v. Gaunt, 12 N. Y. Leg. Obs. 132; Stanton v. Delaware Mut. Ins. Co., 2 Sandf. 662; Gelston v. Marshall, 6 How. 398: Moore v. McIntosh, 18 Wend. 529; Exchange Bank v. Monteath, 4 How. 280; Morrison v. Sturgis, 26 id. 177; Moore r. Pentz 2 Sandf. 664: Cent. Nat. Bank v. White, 37 Super. Ct. (5 J. & S.) 297; Holtz v. Schmidt, 34 id. (2 J. & S.) 28; Morgan v. Morgan, 16 Abb. N. 8. 291; De Bary v. Stanly, 5 Daly, 412; Campbell v. Hoge, 2 Hun, 308; Case v. Barita, 9 Bosw. 595.

§ 804. Rules to prescribe the cases, etc. The gen eral rules of practice must prescribe the cases in which a discovery or inspection may be so compelled, and the proceedings for that purpose, where the same are not prescribed in this act.

Id., 22, am'd. Stalker v. Gaunt, 12 N. Y. Leg. Obs. 132; Bree voort v. Warner, 8 How. 321; Opdyke v. Marble, 18 Abb. 266; 44 Barb. 64; Morrison v. Sturges, 26 How. 177; McAllister v. Pond, is id. 201 Gelston v. Marshall, 6 id. 898.

*See Stitcher v. Tillinghast, 43 Hun, 95,

§ 805. Petition for discovery, and order thereupon. To entitle a party to procure such a discovery or inspection, he must present a petition, (1) praying therefor, and verified by affidavit, to the court, or to a judge,(2) authorized to make an order in the action; upon which an order(3) may be made, directing the party, against whom the discovery or inspection is sought, to allow it, or, in default thereof, to show cause before the court, at a time and place, and upon a notice, therein specified, why the prayer of the petition should not be granted; and, if necessary or proper, that his proceedings be stayed until the hearing of the application, although the stay exceeds twenty days.

2 R. S. 199, 23 and 25. (1) Stalker v. Gaunt, 12 N. Y. Leg. Obs. 132. (2) Brooklyn Life Ins. Co. v. Pierce, 7 Hun, 236; Moore v. McIntosh, 18 Wend. 529; Elder v. Bogardus, 1 How. 117; 1 Edm. 110; Follett v. Weed, 31d. 360. (3) Stow v. Betts, 7 Wend. 536; Crane v. Moore, 1 Sandf. 662.

$806. Order, when and by whom vacated, — An order, made as prescribed in the last section, may be vacated, by the judge who granted it, or by the court, upon satisfactory proof, by affidavit:

1. That it ought not to have been granted, or that it has been complied with ;(1) or,

2. That the party required to make the discovery, or permit the inspection, has not the possession or control. of the book, document, or other paper, directed to be produced or inspected.

Id., 24. (1) Harbison v. Von Volkenburgh, 5 Hun, 454; Southart v. Dwight, 2 Sandf. 672; Hoyt v. Amer. Exch. Bk., 8 How. 89; 1 Duer, 652; Ahoyke v. Wolcott, 4 Abb. 41; Bradstreet v. Bailey, id. 233; Hicks v. Charlick, 10 fd. 129.

§ 807. Proceedings upon the return of the order, Upon the return of the order to show cause, the court may make such an order, with respect to the discovery or inspection prayed for, as justice requires, Where either is directed, a referee may be appointed by the order, to direct and superintend it; whose certificate, unless set aside by the court, is presumptive, and, except in proceedings for contempt, conclusive evidence compliance or non-compliance with the terms of the der. A fixed sum, not exceeding twenty dollars, may e added to the costs of the motion, for the fees of the feree.

bstitute for 2 R. S. 200, 26, and part of Co. Proc., 1288.

§ 808. Penalty for disobedience. - Where an order, made as prescribed in the last section, directs a discovery or inspection, the party in whose behalf it was made, may, upon proof, by affidavit, that the adverse party has failed to obey it, and upon notice to him, apply to the court, for an order to punish him for the failure. Upon the hearing of the application, the court may, upon the payment of such a sum, for the expenses of the applicant, as the court fixes, and upon compliance with such other terms, as it deems just to impose, permit the party in default to comply with the order for a discovery and inspection; and, for that purpose, it may direct that the application to punish him stand over to a future time. Upon the final hearing of the applica tion to punish the party in default, the court, in a proper case, may direct that his complaint be dismissed, or his answer or reply be stricken out, and that judg ment be rendered accordingly ;(1) or it may make an order, striking out one or more causes of action, de fences, counterclaims, or replies, interposed by him; or that he be debarred from maintaining a particular claim or defence, in relation to which the discovery or inspec tion was sought. Where the party has failed to obey an order, allowing an inspection by the adverse party, and requiring him to furnish a copy, or permit a copy to be taken, the court may also direct that the book, document, or other paper, be excluded from being given in evidence; or it may punish the party for a contempt; or both.(2)

Substitute for 2 R. S. 200, 26, and part of Co. Proc., 388. See Rice v. Ehele, 55 N. Y. 518. (1) Birdsall. Pixley, 4 Wend. 196; Follett v. Weed, 3 How. 360. (2) Ackroyd v. Ackroyd, 2 Abb. N. S. 381.

§ 809. Effect of papers, etc., produced. A book, document, or other paper, produced under an order, made as prescribed in this article, has the same effect, when used by the party requiring it, as if it was pro duced upon notice, according to the practice of the court 3 B. 8. 200, 27 (2 Edm. 208). See Smith v. McDonald, 1 Abb. N. Q

350.

ARTICLE FIFTH.

GENERAL REGULATIONS RESPECTING BONDS AND UN

DERTAKINGS

60. 810. Bonds, undertakings, etc., must be acknowledged. 811. Party need not join with his sureties; when one party is suficient.

812. Form of bond or undertaking; affidavit of sureties; approval by court or judge.

813. When several sureties may justify, each in a smaller sum.
814. Bonds, etc., to the people or a public officer for the benefit of
a suitor.

815. Bonds, etc., not affected by change of parties.
816. Id.; to be filled.

$810. [Amended, 1877.] Bonds, undertakings, etc., must be acknowledged. A bond or undertaking, given in an action or special proceeding, as prescribed in this act, must be acknowledged or proved, and certified, in like manner as a deed to be recorded.

by law from levy and sale under an execution. A bond of undertaking given by a party without a security, must be accompanied by his affidavit to the same effect. The bond or undertaking, except as otherwise expressly prescribed by law, must be approved by the court, before which the proceeding is taken, or a judge thereof, or the judge, before whom the proceeding is taken. The approval must be indorsed upon the bond or undertaking.

New. Russell v. Freer, 56 N. Y. 67; Hill v. Burke, 62 id. 111; Rates . Merrick, 2 Hun, 568; s. c., 5 T. & C. 701; Chamberlain v. Applegate, 2 Hun, 510.

813. When several sureties may justify, each in a smaller sum. But where the penalty of the bond, or twice the sum specified in the undertaking, is five thousand dollars, or upwards, the court or judge may, in its or his discretion, allow the sum, in which a surety is required to justify, to be made up by the justification of two or more sureties, each in a smaller sum. But, in that case, a surety cannot justify in a sum less than five thousand dollars; and, where two or more sureties are required by law to justify, the same person cannot so contribute to make up the sum, for more than one of them. [Amended, 1885.]

New.

$814. Bonds, etc., to the people or a public officer for the benefit of a suitor. Where a bond or undertaking has been given, as prescribed by law, in the course of an action or special proceeding, to the people or to a public officer, for the benefit of a party or other person interested, and provision is not specially made by law for the prosecution thereof; the party or other person, so interested, may maintain an action in his vn name, for a breach of the condition of the bond, or terms of the undertaking; upon procuring an inting him leave so to do. The order may be he court, in which the action is or was penda superior city court, the marine court of New-York, or a county court, if the bond or was given in a special proceeding, pending age of that court; or, in any other case, by e court. Notice of the application therefor Iven, as directed by the court or judge, to the erested in the disposition of the proceeds.