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N. Y. Superior Court.-Thomas Stalker and W. Newberry agt. Gaunt, and ors.

The facts appear in the opinion.

Whittaker and Ellingwood, for Plaintiffs.

Hoxie, for Defendants.

notice to

HOFFMAN, J.-This case came on at Special Term upon the defendants, under the 391st Section of the Code, requiring them to appear and be examined before one of the Judges, accompanied with a subpoena duces tecum directed to them, and requiring the production of all books, papers and documents in their possession, or under their control, relating to the matters in controversy. This was to prepare for trial.

The defendants attended, and on an application for an attachment for disobedience of the subpoena to produce the books, the court refused the motion upon various grounds not necessary to be stated.

The court at General Term sustained the decision upon similar special grounds; but expressly without passing upon the question, whether the subpoena to produce was proper under the Code. This question was raised, and much discussed by counsel.

This case and some others which had fallen within the notice of the Judges, led to a consideration of the practice, and the conclusion was, that a party may be compelled to produce books and papers at the trial under the 390th section, by the common subpoena duces tecum, precisely as a stranger witness; and such is to be regarded as the settled practice in this court hereafter.

The subpoena under this section is essential. There is nothing to qualify the language there used, that he may be compelled to testify in the same manner as other witnesses. He is under the same obligations and entitled to the same privileges as other witnesses. The decision of Justice Welles in Bonestell vs. Lynde, (8 Howard P. R., 231,) was under the 390th Section, upon a trial before a referee; and after a very careful consideration, the learned Judge concluded that the process by subpœna was proper; that the party may by this process be compelled, not merely to appear at the trial and be personally examined, but also to produce papers and books in his possession precisely as any other witness may be compelled.

The decision of Justice Roosevelt in Trotter vs. Latson, (7 Howard, 261,) declared a different rule. That was also a case of a refusal to produce books, &c., before a Referee, in compliance with a subpæna. The trial before a Referee is for these questions a trial before court.

And the question was raised in this case, and again in another before me in February Term. It related to the extent of the obligation of the party under such a subpoena, and the consequences of neglecting it literally.

The General Term so far sanctioned the decision at Special Term in the present case as to hold, that there was a discretion in the Judge to determine as to the extent of the necessary or proper production.

I may observe that some of the rules regulating this proceeding are

N. Y. Superior Court.-Thomas Stalker and W. Newberry agt. Gaunt, and ors.

pointed out by Justice Welles. It is always in the discretion of the court to say whether the witness shall produce the documents after they are brought into court. It does not follow that because he must bring them with them, that he shall be compelled to produce them in evidence. (9 East., 473; 1 Esp. N. P. Ca., 403.)

In the language of Chief Justice Shaw, "There seems to be no difference in principle between compelling a witness to produce a document in his possession under a subpœna duces tecum in a case where the party calling the witness has a right to the use of such document, and compelling him to give testimony when the facts lie in his own knowledge. Whether the witness has a lawful or reasonable excuse for withholding it, the Court, and not the witness, is to judge. And when the witness has the paper ready to produce in obedience to the summons, but claims to retain it on the ground of legal or equitable interests of his own, it is a question addressed to the discretion of the court, whether he ought to produce it." (10 Pickering, 227.)

It may be added as to the extent of the requisition to produce, that it has been determined that a notice to an adverse party to produce papers in his possession, must be reasonably specific; that a notice to produce "all letters, papers, and documents touching the bill of exchange mentioned in the declaration, and the debt sought to be recovered," has been held too general, (France vs. Lucy, Ryl. and Moody, 341.) So "to produce letters, and copies of letters, and all books relating to this cause," (Jones v. Edwards, I McCl. and Y. 139.) But a notice "to produce all letters written by the party to, and received by the other between the years 1837 and 1841, inclusive," was held sufficient to entitle the party to call for a particular letter. (Morris v. Hanser, 2 M. and Rob. 392; Rose v. King, 5 Ser. and Rawl., 241.) Accordingly, in a case before me, in February Term, 1854, I held, that a subpoena to produce all books, &c., relating to the matters in controversy in the action, was too vague to warrant proceedings for a contempt.

While upon this subject, I may advert to one other point, whether, if the party calling for a book inspect entries in it, he can object to its being produced in evidence by his adversary. It seems now settled in England that it becomes evidence, if inspected, (Calvert vs. Flowers, 7 Carr. and Payne, 387; See 4 Shephard's Rep. 244.)

But in Kenney vs. Clarkson, (12 Johns. Rep. 394,) Justice Spencer in delivering the opinion of the Court, said, "that he must not be understood as sanctioning the course pursued at the trial, in admitting the paper to be read without proof, because notice had been given to produce it, and it had been called for and perused. That Lawrence ve. Whitney, (1 Caines, 276,) settled nothing-the then Chief Justice expressing no decided opinion, and the rest of the court being equally divided. It appears to me that the notice to produce a paper, and calling for its inspection, ought to be considered as analogous to a title of discovery, where most certainly the answer is not evidence but for the adverse party."

In the case of Terry vs. Roubel, heard before me, at the present term, I have attempted to sustain the proposition, that production and

N. Y. Superior Court.-Higgins agt. Bishop.

discovery of the contents of books and papers, for the purposes of evidence, cannot be had unless accompanied with the examination of the party. This examination is had either under the revised statutes, or upon a subpæna duces tecum. Under the former, the opportunity of answering, on oath, is afforded; and under the latter, I apprehend, no use can be made of books, &c., produced, without swearing the party as a witness. The reasons for this opinion are there stated.

It may well be, however, that this view is, in principle, consistent with the right to inspect and then refuse to read, and of course to examine the party. Yet there should be some guard against an unlimited right to inspect books, which may be abused to other purposes.

[Same Term.]

LORENZO HIGGINS agst. SAMUEL C. BISHOP.

PRODUCTION OF BOOKS BEFORE REFEREE.

An application to produce books, &c., under the Code or the Revised Statutes, where the case is before a referee, cannot be allowed, where an affidavit is positive that the books contain no item which is not in an account rendered, and the account no item not in the books.

But where the case is before a referee to take an account between parties as to whom the right and liability of accounting parties is established, (such as partners,) the referee may, by order, be empowered to make a general call for books, &c., according to the former chancery practice. The party, in such case, is not bound to be satisfied with the oath. He may examine the books himself, subject to the general rule as to sealing up portions relating to other matters.

This was a petition for the production, before a referee, of books of account, &c.

Parsons, for Plaintiff.

Benedict, for Defendant.

HOFFMAN, J.-This is an application under the 388th section of the Code, and the preliminary objection that the affidavit is deficient, under the 9th rule of the Supreme Court, in not stating that the plaintiff is advised by counsel, and believes, &c., does not apply. Those rules, notwithstanding the phrase, "or to prepare for trial," in the 9th of them, relate to the production necessary to enable the plaintiff or defendant to prepare his pleading. (Exchange Bank v. Monteath, 4 Howard, 280.) The pleadings shew a case of partnership, or at any rate of a joint interest in the business to be carried on, which undoubtedly entitles the plaintiff to a production of all the books and documents in the defendant's hands, relating to the subject matter. It is the case of a common interest adverted to in the authorities, and justifies a demand for a production at large, under the defendant's oath.

N. Y. Superior Court.-Higgins agt. Biseop.

The complaint sets forth an account rendered by the defendant, and states several objections of errors, wrong charges, and omissions in it. The answer seeks to explain or defend the items. An order of reference was made, and the cause is now before the referee.

The application is distinctly under the Code, (§388,) asking for an inspection and liberty to take copies of the books, &c. One affidavit of the defendant shews a sufficient excuse for the refusal of the demand, so at least as to exempt him from costs. But the other affidavit is, that the books contain no item which is not in the account, and the account contains no item not in the books; and that the only other papers and documents which he has, relating to the matters and business in controversy in this action, are vouchers in support of his account, ready to be produced on the trial. This forms an answer to the present application under the code. (Hoyt v. The Am. Ex. Bank, 8 Howard, 93, 2 R. S. 262, § 32, sub, 3.)

The petition could be framed under the revised statutes, with a slight amendment. But the objection would probably not even then be removed.

But, under the rules of the Court of Chancery, where the relation of an accounting party was established, this answer would not have been sufficient. The plaintiff would have been entitled to examine the books, and to judge for himself, whether there were entries in them material to the case; the course as to sealing up other entries being observed.

In Frazer v. Phelps, (4 Sandf. S. C. Rep., p. 682,) this Court at general term, decided that an order might be made, giving authority to a referee to direct the production of books and papers, relating to the merits of the action, where it was of an equitable nature. Disobedience to a requisition by the referee under such an order would be punished by attachment. Application for that process could only be made to the Court, when it would judge of the propriety of the referee's course.

I think this is a case in which such clause in the order would have been made of course, and may now be had.

Another course is open to the plaintiff, if he shall be advised to adopt it. He may serve a subpaœna duces tecum upon the defendant, and examine him as a witness, with the opportunity of producing the entries in the books in evidence, on such examination. See Stalker v. Gaunt, -Special Term and General Term, Feb. 1854. (Ante, p. 124.) The plaintiff may resort to this course, if he elect so to do, and, if so, his present application will be denied without costs. If he do not so elect, he may enter an order denying the motion without costs, and with leave to apply on five days' notice, for an order authorizing the referee to require the production and deposit with him of all books, papers, and documents in the possession or under the control of either of the parties relating to the subject matter of the action, as he shall see fit.

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APPLICATION TO EXAMINE DEFENDANT.-COURSE OF PROCEEDING.

A party who is to be examined as a witness previous to trial is to be compelled to attend, and is to be examined in the same manner as a witness examined conditionally. This is regulated principally by the Revised Statutes.

A summons, as therein prescribed, appears to be the proper mode of procuring the attendance under the 391st section of the Code.

Semble, that a subpoena duces tecum may issue under this section as well as under the 390th.

This case was submitted. The questions raised appear in the opinion.

HOFFMAN, J.-The question in this case was, whether a party applying for an examination of his adversary under the 391st section of the Code, was bound to subpoena him or procure an order of a judge for his examination, or both; or whether the notice directed to be given was not sufficient of itself; or what other course was proper.

The 389th section has abolished any action to obtain discovery under oath, and has provided that no examination of a party shall be had on behalf of the adverse party, except in the manner prescribed in that chapter.

Then, the 390th section provides, that the party may be examined as a witness, and may be compelled in the same manner, and subject to the same rules of examination as any other witness, to testify, either at the trial, or conditionally, or upon commission.

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