Green agt. Rosa.

II. For the same purpose, the schedule and inventory, filed under the assignment, were competent evidence of McGovern's insolvency. The objection, that it was not filed in time, is not good. The inventory is to be filed by the assignee with the county judge within twenty days after the execution of the assignment, and the county judge shall file the same in the office of the clerk of the county where the assignment is recorded, but the statute does not say when he must do it. It was filed before offered in evidence (Laws 1877, chap. 466, sec. 3; amended 1878, chap. 318; Produce Bank agt. Morton, 67 N. Y., 203).

III The defendant was not prejudiced by the admission of the assignment and schedule and inventory (Belmont agt. Coleman, 1 Bosw., 188; Keator agt. Dimmick, 46 Barb., 158).

LEARNED, P. J.-The plaintiffs sold goods to one McGovern, about December 12, 1883. Afterwards McGovern made a general assignment to one Hayfinger, January 9, 1884. Afterwards creditors of McGovern sued him, and in such suits issued attachments under which the defendant sheriff, &c., by his deputy, seized goods, among them those sold by plaintiffs. Subsequently the plaintiffs commenced this action of replevin, and took the goods; but the same were retaken and retained by giving the usual bond. The ground of plaintiffs' action, as stated, is, that the goods were obtained from them by false and fraudulent representations when McGovern was insolvent, with the design of not paying for the same.

To show McGovern's insolvency at the time of the so-called sale of the goods, plaintiffs gave in evidence his assignment, dated January 9, 1884, and the inventory and schedule dated January 26, 1884, and filed in the county clerk's office September 27, 1884. To this defendant objected. Plaintiffs read therefrom the amount of indebtedness and of property, and also the assignment, to all which defendant objected.

At the conclusion of the charge the defendant asked the court to charge that the inventory did not tend to establish VOL. III

5

Green agt. Rosa.

McGovern's liabilities.

The court refused.

We think that the

plaintiffs might prove the fact that McGovern made an assignment for the benefit of creditors as tending to show that, at the short time previous, when he bought, he had no intention of paying, the act of making an assignment, whether he was then really insolvent or not, was a fact which might have some influence in deciding what his intentions were when he bought, just as if he had sold all his property to any other person. But McGovern's statements in that assignment were not, and still less were the contents of the inventory and schedules, evidence against the defendant of the matters therein contained. These were mere statements made by McGovern out of court, and on the 29th day of January that on such a day, the 9th of January he owed so much and had so much property. Neither plaintiffs nor defendant claimed under the assignment (Tyler agt. Brook, 68 N. Y., 418; Turner agt. Lee, 57 id., 667).

The evidence of fraud in this case is this: plaintiffs asked McGovern how he was getting along. He said he was getting along good; all right. He testifies that at that time he knew he was insolvent, owing $3,600 and having $1,900, and in a month's time he failed. He testifies that he had no intent to defraud plaintiffs when he made the purchase. Of course the question is whether the purchase was made with the design not to pay. We cannot say that there was no evidence to go to the jury on that point.

McGovern's testimony was contradicted by what he had previously sworn to on another occasion, as to his knowledge of his financial condition when he made the purchase, and this was very material on the question of fraud. Therefore, we cannot disregard the error in the admission of evidence above mentioned, an error insisted upon by the defendant in various ways. Judgment reversed. New trial granted, costs to abide event. LANDON, J., I concur.

Knowles agt. De Lazare.

NEW YORK COMMON PLEAS.

EDWIN KNOWLES and another agt. MARIUS DE LAZARE and another.

Supplementary Proceedings-Referee-Who should sign subpœna-Code of Civil Procedure, section 854.

In proceedings before a referee supplementary to execution, a subpœna should be issued by and under the hand of the referee, pursuant to section 854 of the Code of Civil Procedure.

Special Term, December, 1885.

MOTION to punish witness for contempt.

Hugo Hirsh, for the motion.

S C. Baldwin, opposed.

Before VAN HOESEN, J.

IN proceedings before a referee supplementary to execution, a witness was served with subpoena under signature of the clerk and seal of the court.

Held, on motion to punish the witness for contempt for failing to attend pursuant to the subpoena, that the subpoena should have been issued by and under the hand of the referee, pursuant to section 854 of the Code of Civil Procedure, and motion denied.

James agt. Coxe.

CITY COURT OF NEW YORK.

ALFRED E. JAMES agt. FRANKLIN COXE, Jr.

Discovery-Of certain correspondence calculated to prove or disprove the defense 80 as to determine its legal effect before trial is not allowable.

A plaintiff cannot compel the discovery of correspondence in possession of the defendant, for the mere purpose of ascertaining in advance of the trial, whether such correspondence proves a modification of contract pleaded by the defendant and relied on by him as a defense to the action.

General Term, December, 1885.

Before MCADAM, C. J., HYATT and HALL, JJ.

APPEAL from an order directing a discovery.

A. Kling, for defendant and appellant.

G. W. Van Slyck, for plaintiff and respondent.

MCADAM, C. J.-The action is on a written lease of certain apartments let for one year and four days from August 27, 1884, at the yearly rent of $1,800, payable monthly, in advance. The claim is for a balance of rent for the months of May, June, July and August, 1885. The defense is that in May, 1885, the lease was modified by a new agreement, by which the plaintiff was to receive sixty-three dollars per month to the termination of the lease, in lieu of the rent provided thereby, and that the defendant has satisfied all claims under the agreement as modified. The production of the lease proves the plaintiff's case, and the onus is immediately shifted on the defendant to prove the modification alleged. The plaintiff needs no discovery to establish his case, and the question is practically reduced to this — can he compel the defendant to produce certain correspondence calculated to prove or disprove the defense so that he may determine its legal effect before the trial?

Crosley agt. Cobb.

In Andrews agt. Townshend (2 Civ. Pro. R., 76), it was held that where the paper of which discovery is sought does not relate to maintaining the case of the one applying for it, no discovery or inspection can be had. To substantially the same effect are Shoe and Leather R. Association agt. Bailey (49 N. Y. Super. Ct. R., 385), and Mott agt. Consumers' Ice Co. (2 Abb. N. C., 143), and 2 Tillinghast & Shearman's Prac., 211. In Chapin agt Thompson (16 Hun, 53), the plaintiff sought to examine the defendant before trial, as to matters of defense pleaded, and the court held that an order will not be granted where the applicant only seeks to find out what the opposite party will swear to, so as to enable him to prepare to meet and overcome it. The language of that authority is applicable here, if the case is not. The plaintiff evidently seeks to discover what correspondence the defendant has, in order to determine in advance of the trial whether it proves the modification relied upon by the defendant in his defense. Discovery for such a purpose is not allowable under our rules of practice. It follows that the order allowing the discovery must be reversed, with costs.

HYATT and HALL, JJ., concurred.

SUPREME COURT.

EDMUND CROSLEY agt. CALVIN F. COBB.

Appeal-Practice-Code of Civil Procedure, section 22-Libel-Evidence.

The method of referring to parts of the complaint as "at" or "between" certain folios, however convenient and easy in the first instance, serves no useful purpose upon appeal, nor does it conform to the spirit of the Code, which requires pleadings to be made out "in words at length and not abbreviated" (Code of Civ. Pro., sec. 22).

When, by inadvertence, an answer has been drawn, referring to the original folios of the complaint, the appeal book should be so printed as to render the pleadings intelligible.

In an action for defamation of character when general damages only are