Elmer v. Byrd
| Decision Date | 15 November 1961 |
| Citation | 32 Misc.2d 408,220 N.Y.S.2d 985 |
| Parties | David John ELMER, Plaintiff, v. John Benjamin BYRD and Patricia Ann Hourihan, Defendants. |
| Court | New York Supreme Court |
Lamb, Webster & Walz, Rochester, Clifford W. Tomer, Rochester, of counsel, for defendants, movants.
Milo Thomas, Rochester, for plaintiff, respondent.
In this negligence action plaintiff has put in issue the matter of his alleged loss of earnings for some months after April 2, 1961. In his bill of particulars he states that his average weekly earnings for the year preceding the accident amounted to $150; and he claims loss of earnings in the sum of $1,110. He also states that at the time of the accident and for three months prior thereto he was employed by Bay Construction Co. of which he was an officer; and that for the calendar year 1959 he was employed by a different construction company and earned $5,845.16.
Defendants have moved for an order granting them discovery and inspection of plaintiff's federal income tax returns for the years 1959 and 1960. They assert that on the examination before trial of plaintiff he testified that he was self-employed, that Bay Construction Company was not really a construction company and hired no one except plaintiff. They contend that special circumstances exist here which entitle them to inspect the said tax returns.
Plaintiff swears that he has kept no copy of his said income tax returns. He contends that defendants should not require him to supply their defense; that if they want his income tax returns, they should get them as best they can, or serve a subpoena duces tecum for their production at the trial.
In cases where the production of income tax returns is material and necessary for the prosecution of an action our courts have ordered discovery and inspection thereof. (Yocum v. Gordon A. Davis, Inc., 10 A.D.2d 597, 195 N.Y.S.2d 401; June v. George C. Peterson Co., 7 Cir., 155 F.2d 963, 967; and see Conway v. Hewitt, 7 A.D.2d 931, 183 N.Y.S.2d 860, and Rosenkranze v. Fasano, Sup., 202 N .Y.S.2d 577.) In many cases it has been held that a defendant in a negligence action has a right to discovery and inspection of plaintiff's federal income tax returns, where plaintiff has put in issue the matter of loss of earnings.
Of course, the courts should be careful in a matter...
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Coleman v. Myers
...Many cases support the requirement of discovery of income tax returns when the injured plaintiff is self-employed Elmer v. Byrd, 32 Misc.2d 408, 220 N.Y.S.2d 985, affd. 16 A.D.2d 744, 227 N.Y.S.2d 248; Rosenblum v. Rosenblum, 21 A.D.2d 682, 249 N.Y.S.2d 918; Sachs v. Stripling, 36 Misc.2d 8......
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Katz v. Memoli
...(1962 through 1965) and also for one year prior thereto (1961) so that a basis of comparison can be achieved. (See, Elmer v. Byrd, 32 Misc.2d 408, 220 N.Y.S.2d 985, affd. 16 A.D.2d 744, 227 N.Y.S.2d 248; Altman v. City of New York, 46 Misc.2d 133, 258 N.Y.S.2d ...
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Bauer v. Huber
...The same rule has been applied where plaintiff, ostensibly employed by a corporation, was its sole employee and officer, Elmer v. Byrd, 32 Misc.2d 408, 220 N.Y.S.2d 985 (Sup.Ct. Monroe Co. 1961) aff'd 16 A.D.2d 744, 227 N.Y.S.2d 236 (4th Dept.1962), or was the corporate officer responsible ......