The opinion
Martin, J.,
(concurring.) On the 25th day of June, 1889, the appellant made a motion at the Herkimer special term for leave to serve an amended answer in this proceeding, for an inspection and discovery of certain notes and letters claimed to be in the respondent’s possession, or for such other or further order or relief as to the court might seem just. The court granted the appellant leave to serve an amended answer, on condition that he pay all the respondent’s costs and disbursements from the service of notice of trial until the date of such order, with $10 costs of the motion; such costs and disbursements to be allowed at the same extent and amount as a plaintiff would be entitled to if awarded costs and disbursements in an action tried before a referee, and appealed and decided at general term. The discovery and inspection was granted as to the notes, but denied as to the letters. The appellant appeals from that portion of the order which denies an inspection of the letters, and also from that part of the order which imposes the payment of costs to the respondent as a condition of leave to serve an amended answer herein.
I concur in the opinion of Hardin, P. J., that the order appealed from should be modified by striking therefrom all the provisions as to the amended answer, and payment of costs as a condition of serving the same, and inserting therein a provision vacating the stipulation between the parties as to pleadings, and striking out the pleadings served in pursuance of such stipulation. This leaves for consideration only that part of the order which denies an inspection of the letters. An examination of the papers read upon this motion leads me to the conclusion that the order relating to the inspection and discovery of such letters and notes was proper, and should be affirmed. I therefore concur in the opinion of Hardin, P. J., that the order should be modified as therein stated, and, as modified, should be affirmed, without costs to either party of the motion or upon this appeal.