Note on Discovery as Distinguished from Accounting. tecum, discovery of the original subpoena, which had been served instead of a copy, was denied, even though the applicant had no copy in his possession or under his control. But in Townsend v. Lawrence, 9 Wend. 458 (1832), the Supreme Court held, that the provision of the Revised Statutes extended the previous practice so as to allow discovery not only of documents which constitute the cause of action, but of any and all books, papers and documents relating to the merits of the suit or the defense. Accordingly, in an action on the general count in indebitatus assumpsit brought against the defendants who were members of an unincorporated association or joint stock company,held, that the original articles of association and letters by some defendants to others authorizing subscription to the stock (being wanted to show membership) could be ordered to be discovered, although the declaration was not founded on a written contract and plaintiffs applying showed no interest in the papers. And this case of Townsend v. Lawrence, 9 Wend. 458, was followed and approved in Arnold v. Pawtucket Water Co. (R. I. 1893), 26 Atl. Rep. 55, citing also other cases. From these cases it will readily be seen that the right of discovery and inspection may be exercised with perfect freedom irrespective of whether the action is for equitable or legal relief. Other cases and the present practice will be found indicated in 2 Abb. N. Pr. & Forms. 418. 6. Interest in the documents; privacy of accounts.] It will be seen that the statutory provision embodied in the Revised Statutes, and continued in the Code, goes far beyond the original practice of Chancery in that it allows discovery of documents in which the applicant had no interest, his only right being in the fact that they may be useful to him as evidence. The rule to this extent is freely applied by the courts wherever the document is one which relates simply to the controversy in the action, and it is also applied with equal freedom to single documents where no reasonable objection on the ground of privacy is suggested, as, for instance, in the case of an application for a discovery of defendant's articles of co-partnership, in order to enable plaintiff to determine who may be joined as defendants in the action; but where the application is to discover entries in account books, the law has due regard to the great injustice that may be done by allowing a general survey of accounts at large, under the pretext of discovering specific items or entries affecting only the particular parties to the suit. In Note on Discovery as Distinguished from Accounting. this class of cases, therefore, it is customary still to apply something of the principle which formerly limited discovery of documents in equity, and to consider the question whether the plaintiff has any right or interest in the books and papers constituting the account as such. Thus the right of a principal to have discovery of books and vouchers of his agent rests on stronger grounds than the claim of an ordinary party to the inspection of the books of an adversary. Manley v. Bonnel, 11 Abb. N. C. 123; Duff v. Hutchinson, 19 Weekly Dig. 20; S. P. Inyo Consolidated Mining Co. v. Pheby, 49 Super. Ct. 392; Allen v. Allen, 33 State Rep. 876; Harding v. Field, 46 Id. 628. On the other hand, an agent's or employee's application for discovery of his principal's or employer's books is not so readily granted. Dickie v. Austin, 65 How. Pr. 420; Perls v. Metropolitan Life Ins. Co., 32 State Rep. 44; Harbison v. Von Volkenburgh, 5 Hun, 454; Bridgman v. Scott, 36 State Rep. 982. 7. Instrument pleaded.] But irrespective of the existence or non-existence of any such interest or relation, the principle is now well recognized that a party is not confined in seeking discovery to asking for evidence to support his own case; but so far as his adversary has in his pleading set up the existence and relied on the effect of a document interweaved in his case, an application to compel such adversary to make discovery and allow inspection of it may be granted if necessity is shown. Seligman v. Real Estate Trust Co., 20 Abb. N. C. 210. 8. Things other than documents.] The power of discovery here under consideration is held to extend to documents of all kinds, and "document" in the law of evidence includes whatever may be read, i. e., inscriptions which communicate information, whether in books or on paper, parchment, or other material. It does not, however, extend to other articles, such as merchandise. Ansen v. Tuska, 19 Abb. Pr. 391; Downey v. MacAleenan, 42 State Rep. 672; s. C., 16 N. Y. Supp. 916. It has recently been held (though not in connection with an ordinary application for discovery in a civil action, but in a special proceeding for the probate of a will), that the court have power to require papers filed by a party as originals to be photographed, and also to allow the ink to be submitted to chemical tests in order to determine whether such papers were forged or genuine, the question of authenticity being in issue. Monroe's Estate, 23 Abb. N. C. 83. To recapitulate :-In the language of chancery "Discov Note on Discovery as Distinguished from Accounting. ery" included both the responding to interrogatories which called for testimony of defendant, and the production of documents by him. The Legislature in 1830 reduced the necessity of filing bills for discovery by giving the late Supreme Court power to compel discovery to be made by producing documents (2 N. Y. R. S. 199, § 21), but not by answering interrogatories. Hence, the phrase "discovery and inspection," or, more shortly, "discovery," was used in the common law courts to mean only a discovery of writings. When the Code of Procedure was adopted, bills of discovery were abolished, and the right to examine the adverse party as a witness before trial, was substituted (note to Glenney v. Stedwell, 1 Abb. N. C. 327, 332), and by the Code of Civil Procedure (in 1876) the regulations as to this oral discovery-called now "examination before trial "—were merged with those regulating the taking of depositions of witnesses not parties (N. Y. Code Civ. Pro., § 872). Thus it has come about that "discovery "is now often used to mean discovery of documents; and "examination before trial "is used to mean examination by oral interrogatory, whether for the purpose of discovery, or for the purpose of using the answer like the deposition of a witness at the trial. The Statute. A party to a suit (the Rev. Stat. said, in the Supreme Court; the Code says, in a court of record other than a justice's court in a city) may be compelled to produce and discover books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defense therein, as evidence (and the Code adds to compel giving a copy or permission to take a copy). 1 R. S. 200, § 21, etc.; 3 Id. 6th Ed. 224, § 104, etc.; N. Y. Code Civ. Pro., § 803, etc. For the General Rules of Practice, see Rules 14, 15, 16 and 17. Gorham 7. Eastchester Electric Co. GORHAM v. EASTCHESTER ELECTRIC COMPANY. County Court of Westchester County; March, 189 1. Highways. The owner of a village lot abutting on the highway (whether the circumstances are such as to give him title to the centre of the street or not) has the ordinary and usual easements in the street, and a tree upon the sidewalk planted by him or his predecessors in title and maintained there as a shade tree, presumably with the consent of the public authorities, is an appurtenance to his premises. 2. Trespass.] An electric company, which, without consent, cuts such a tree more than necessary for the erection of its wire and thereby impairs its value to the premises as a shade tree, is liable in damages therefor. Motion for a new trial upon the minutes. Frederick Gorham and his wife brought this action against the Eastchester Electric Company for the unskillful and unnecessary cutting of a shade tree on the sidewalk in front of his premises. Plaintiff produced the deed under which he held which described the premises as bounding on the street. It did not appear whether the public had taken the fee of the street, or had only taken an easement or right of way over the ground for the purposes of highway. Under the instruction of the court, the jury assessed the damages at $75, and the cause now came before the court on a motion for a new trial by the defendant. The further facts are fully stated in the opinion. Odell D. Tompkins, for plaintiff. Milo J. White, for defendant. MILLS, COUNTY JUDGE.-The defendant moves upon Gorham 7. Eastchester Electric Co. the minutes for a new trial upon the grounds, (1) That the plaintiffs' deed did not give to them title to the centre of Valentine Street, but only to the side of the street, and that the tree which was cut, being within the street limits at the outer margin of the sidewalk, the plaintiffs had no title to it; and (2) That a wrong measure of damages was given to the jury by the court in the charge. The counsel in their briefs have submitted the numerous decisions in this state bearing more or less directly upon the first of these questions. A careful reading of them convinces me that, as stated by Judge GRAY, writing the opinion of the Court of Appeals in the very recent case of Holloway v. Southmayd (139 N. Y. 390, 400). "There is great difficulty in reconciling the decisions in this State upon the question of when a description in a deed, which bounds the premises upon (or by) a highway. or street, shall be deemed to take in the fee to the centre line of the roadbed in front of the premises." While the preponderance of authority, or at least judicial expression, in the cases submitted to me seems to favor the affirmative of this question, that is, that such a description takes. in the fee to the centre line of the street, yet I am by no means satisfied that the Court of Appeals would so decide in reference to such a description as the one contained in the plaintiffs' deed, where the lot conveyed is situated in a city. It is clear, however, upon general principles and especially from the decision of the Court of Appeals in the case just cited, that whether or not the grantee in such a deed takes the fee to the centre of the street, he certainly does take, by virtue of his grant and as a part of it, the ordinary and usual easements in the street which appertain to property abutting upon the highway. I think that without proof the court may take judicial notice of the well-known fact, that one of the ordinary and almost universally recognized uses of the street, appertaining to abutting property, at least in small cities like Mount |